(From previous issue) :
Thus, Jayanti Rani brought a criminal case of rape with a plea that she would not have given consent to sexual intercourses, had her colleague not promised of marriage. Indian Supreme Court acquitted the accused and held that:
"The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact of the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from misconception of fact. But here the fact alleged is a promise to marry, we do not know when. If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 of IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability of the other, unless the court can be assured that from the very inception the accused never really intended to marry her."(Para: 16).
22. In the case referred to above, in the matter English view was also discussed, in para 10, as had been observed in the case of R vs Clarence, (1886-90) AER: 133.
"That consent obtained by fraud is no consent at all, is not true as a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent"
23. In the instant case, the test is that, nothing happened by which Nasima (PW 1) would have had a reason to believe that, because of touching the Holy Quran by the appellant and giving promise of marriage, she became married to the appellant. There was, according to the statement of Nasima alone, that the appellant promised to
marry her in some indefinite future time. If we accept Nasima's sole testimony to be reliable, in that event also it cannot be said that Nasima's consent to regular sexual intercourse was obtained by deceitful means. Nasima consented to repeated sexual intercourses with the appellant as an outcome of her own mental change, infatuation, attraction towards the appellant and a hope for future marriage. The Tribunal failed to notice these facts. The scenario needs to be judged in the light of in Section 9(1) of the Ain, 2000 and also Section 375 of the Penal Code. These are quoted below:
“৯। ধর্ষণ, ধর্ষণজনিত কারণে মৃত্যু, ইত্যাদির শাস্তি। -- (১) যদি কোন পুরুষ কোন নারী বা শিশুকে ধর্ষণ করেন, তাহা হইলে তিনি যাবজ্জীবন সশ্রম কারাদন্ডে দন্ডনীয় হইবেনা এবং ইহার অতিরিক্ত অর্থদ-েও দন্ডনীয় হইবেন।
ব্যাখ্যা। - যদি কোন পুরুষ বিবাহ বন্ধন ব্যতীত [ষোল বৎসরের] অধিক বয়সের কোন নারীর সহিত তাহার সম্মতি ব্যতিরেকে বা ভীতি প্রদর্শন বা প্রতারণামূলকভাবে তাহার সম্মতি আদায় করিয়া, অথবা [ষোল বৎসরের] কম বয়সের কোন নারীর সহিত তাহার সম্মতিসহ বা সম্মতি ব্যতিরেকে যৌন সঙ্গম করেন, তাহা হইলে তিনি উক্ত নারীকে ধর্ষণ করিয়াছে বলিয়া গণ্য হইবেন।
“(২) -- (৫) ..................”
"Section 375-Rape-A man is said to commit "rape" who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following description.
First: Against her will.
Secondly: Without her consent.
Thirdly: With her consent, when her consent has been obtained by putting her in fear of death, or of hurt,
Fourthly : With her consent, when the man knows that he is not husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly: With or without her consent, when she is under [fourteen] years of age.
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception: Sexual intercourse by a man with his own wife, the wife not being under [thirteen] years of age, is not rape."
24. Section 9(1) of the Ain, 2000 does not define rape, but speaks of al©Y in general. The Explanation (e¨vL¨v) to the sub-section speaks of among other factors Òm¤§wZ e¨wZ‡i‡K ev fxwZ cÖ`k©b ev cÖZviYvg~jKfv‡e Zvnvi m¤§wZ Av`vq Kwiqv|Ó
25. In the instant case, Nasima, according to the complaint itself was above 18. She claims that she consented to the physical relationship as a result of the deceitful means. But evidence on record as discussed earlier indicate that it was her voluntary act. So the mischief of Section 9(1) is not attracted.
26. It is noted that Section 375 of the Penal Code does not directly refer to the situation of obtaining consent by deceitful means, but speaks of consent only. In our view the expression "consent" means voluntary consent of an adult. So the circumstances of this case does not attract Section 375 of the Penal Code.
27. The case of Nasima seems to be similar to that of Jayanti Rani hinted above. In the said case of Jayanti two adult man and woman, indulged in repeated sexual intercourses, where there was no evidence of use of force or of a promise of marriage amounting to deception. Two adults, through a complex chemistry of acquaintance developed a close proximity, leading to physical relationship.
28. It appears from the materials on record that, with the passage of time, short or long, the relationship between the two, developed and Nasima might have a hidden desire, physiomental. Slowly these two adults, consciously or not started reaching the body of each other and it went on and reached its peak but finally hindered by reasons fountained from a hard reality.
29. In the circumstances of the case as revealed from evidence on record, only one party of the two contributing to the amicable act can not be stamped to have committed an offence of rape. In our view, the act of the male partner does not attract the mischief of Section 9(1) of the Ain, 2000.
30. We further hold that liberal interpretation of section 9(1) of the Ain, 2000 tilting towards the adult female partner in one hand, in such cases, may open a flood gate of such embroided and frivolous litigations and. on the other hand, it may send an improper signal to the society in general and to the female partners in particular that in its turn help shun their tradition bound values. Here we feel tempted to recalI a comment of the aforesaid case of Jayanti Rani that: "If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part."
31. The Tribunal failed to appreciate as to what a legal evidence is and what not. With these findings we arrive at the conclusion that the charge under section 9(1) of the Nari-o-shishu Nirjatan Ain of 2000 (amended 2003) failed and accordingly the appeal is alIowed. The Judgment of conviction and sentence dated 25-11-2013 passed by the Nari-o-Shishu Nirjatan Daman Tribunal No.1. Chittagong in Nari-o-Shishu Nirjatan Daman Case No. 89 of 2009 is hereby set aside and the appellant Mohammad Najim Uddin is hereby acquitted of the charge framed against him in that case and he be accordingly' set at liberty.
Office is instructed to communicate this Judgment and order and send down the LCR at once.