Hello,
he may file a petition in the HC for quashing of the charge sheet. SC has recently held that consensual physical relationship can not be later termed as rape.
regards
SEC 376 Promise to marriage
Respected Sirs, this case is of my friend – As per FIR brief summary of case is that she (complainant) is 26 years and Bachelor in Journalism.She met my friend in Sep 2013 for modeling job and they had physical relations in October 2013 at my friend’s residence. They further had physical relations in November and December 2013 till July 2014, when she came to know that my friend is married. She broke up but again started intimacy in March 2015 and continued friendship. She said my friend proposed her for marriage in June 2015 but she refused the proposal. In June 2016 my friend and his wife applied for mutual consent divorce and got it in January 2017. In FIR she alleged that at the time of applying for divorce in June 2016 my friend had promised her to marry after divorce and their physical relations continued till May 2018. While friend says he never promised her marriage at any time and even in the beginning he told her about his marriage i.e. 2013. My friend’s parents fixed his marriage in May 2018 but three days before his marriage she told him that she is 20 weeks pregnant i.e. from December 2017. My friend got married as decided by his parents with another girl in May 2018 and she filed complaint in May 2018. At present my friend is on Bail, charge sheet has been filed and case is pending in session court for framing of charges. One more thing statement of complainant under sec 164 is not available in charge sheet given to him. Please advise how he should proceed in this case.
Asked 6 years ago in Criminal Law
Religion: Hindu
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12 Answers
Statement not part of police investigation but court record, will get from court , Apply for certified copy.
Women knowing men is married and still in physical relation with him is not rape. And she was in consensual sex with him long before diovrce, hence her allegation that after divorce he will her and committed rape will not sustain.
defense should be it was consensual sex with no promise of marriage
2) rely upon messages exchanged with the complainant
3) that complainant had given her free unequivocal consent for having sex
4) burden of proof is upon prosecution to prove allegations beyond reasonable doubt
Dear Queriest
Engage a criminal lawyer and prepare to defend on merits.
As you said you will have to stick to the defence that you never promised any marriage.
That she was interested in consensual relations. You need to preserve the sms Whatsapp chat into the same.
As far as child is concerned, father shall be liable for the maintaince of the child. In case the court orders then DNA test can establish the same. It requires an application that will be filled by the girl. Are you sure that she is pregnant from you only.
You should try to settle the matter once for all. When settled end the relationship once for all.
The matter being sensitive, please talk to me through kaanon
See at this stage discharge can applied before the court on ground there was no promise of marriage and there is no evidence of same available with the chargesheet. The girl was aware of the fact of marriage and marital discord she with consent had physical relationship with the accused.
Dear sir,
As per your query it is clearly showcasing that she has filed a fake and frivolous complaint against your friend.
But what is seen can not be considered until and unless, it is proved. My advice for you is to get a best possible attorney who can handle these situations very modestly and get your friend out of this frivolous case.
You can contact me for consultation. if any,
regards,
YUGANSHU SHARMA
ADVOCATE
I'm prepared to defend your friend in court. I'm sure under the circumstances, I would be able to secure his discharge or aquittal.
Get him to visit me for consultation.
Rape happens instanly. Its occurance does not depend upon occurance or non occurance of something in future. Hope you will understand the logic. yes there are in recent past many misleading interpretation of defination rape and cheating in connention with having sex in broken marriage promise, by many judicial platfom and police action based on such interpretations.
The issue needs a elaborate discussion which is not possible here. All i advise you that as per law you have done no criminal offence. All you need now is to strongly defend your case by engaging some good lawyer. To give you some defence ground i mention few below
promise to marriage is not enforceable by law.
marriage is religious alliance. Any pre nuptial agreement and any promise does not enjoy any force of law.
in extreame case if the promisee suffer any economic loss then principle of promissory estoppel apply making you legally liable to compensate the loss and damage. Note here economic loss and law does not encourage any emotional outrage.
Breaking a marrige promise can be a civil wrong at an extreme situation but can never be a criminal wrong or crime.
you can even sue police for levelling rape charges against you in the given circimstances.
again reitereited than engage some good lawyer to defend you in court.
all i metioned above is to give you some basic idea about law in this regard and to build up some confidence within you. Because if you are not confident you can not fight the case in your favour. Your lawyer would certainly do but first you need to be confident because court may ask you many question which you need to reply confidently and lawfully.
We suggest you to move an petition of quashing under Section 482 croc. Further there is a Supreme Court judgement where sexual intercourse during affair or live in relationships will not amount to rape.
You can demand the said statement from the prosecution. They will provide you. You can also file discharge in trial court or quashing in high court to quash the case if it was a consentual sex
It is not necessary that the 164 statement should be given to the accused along with the charge sheet.
Your friend if admits to have sexual relationship then the court may convict him for the offences under section 417 IPC.
He cannot say that he did not promise to marry her owing to the circumstances.
Instead he may settle the matter with her and ask her to submit an application stating that they have settled out of court hence she withdraws the complaint, this will get him the relief instead of fighting it on merits.
You can apply for copy of statement of 164 from court.
You should make her compromise in the case.
The case is in favour of your friend as she has consensual sex and she is admitting to that.
You just have to hire a good criminal lawyer he will handle the case
