The abuse of rape laws is far too rampant in India

Rape is a heinous crime and every person held guilty must be punished in accordance with law, but how far does the law protect an innocent accused of rape? According to National Crime Records Bureau data, offenders in cases of rape were known to the victims in around 95.5 per cent cases. Thus, it will not be incorrect to say, that in a large number of cases, the offender and the victim were known to each other and, perhaps, during a possible love affair, they may have made numerous promises, with intentions of fulfilling these promises. A number of cases are registered where the complainant alleges that rape has been committed on a false promise of marriage.

Many of these cases are filed after a considerable delay and usually after seeking legal advice, wherein acting upon such advice, a strong case is registered. A serious case is made out where it is alleged that ‘repeated rape’ has been committed over the period of the love affair. Thereafter, a FIR is registered on the basis of these complaints, which is followed by a medical examination of the victim and the arrest of the offender.  However, the law must ensure the protection of the accused and that he is not put through undue hardship when a false complaint of alleged rape is made out of vendetta and to settle old scores.

The Indian Penal Code, 1860 under Section 376 provides for punishment for rape, which is rigorous imprisonment which shall not be less than 7 years, which may be extended to life and shall also be liable to fine. Under Section 376(2) punishment is rigorous imprisonment which shall not be less than 10 years but which may be extended to imprisonment for life and shall also be liable to fine.

Considering the gravity of the offence, even in cases where the complaint is made that rape has been committed on a false promise of marriage, it is often difficult for an accused to get bail. The stigma attached with cases of rape in India is not only carried by the victim and her family, but also by the accused and his family.

It is pertinent to consider whether an arrest is necessary in such cases. In fact, is there a need for an arrest to be made as soon as the FIR is registered? It is a distressing situation if all arrested are not guilty but sent to prison without consideration of facts and circumstances of their case. Liberty is precious and must not be curtailed on the basis of complaints made after a breakup and/ or out of vendetta. Bombay High Court, while considering the anticipatory bail application observed in the case of Akshay Manoj Jaisinghani Vs The State of Maharashtra, “This is an unfortunate but routine case of a boy and girl having (an) affair, indulging into (sic) sexual relationship and ultimately ending into a breakup.” (Court granted anticipatory bail to the accused in the aforementioned case.)

In certain cases, it is prima facie evident that the complainant is not making a bona fide complaint and that in such cases, anticipatory bail should be granted. The Delhi High Court, while deciding a case where a married woman had filed a complaint that she had sexual relations outside of her marriage on the promise that the offender would marry her, held that where the victim was married, there could be no promise to marry her and on the said pretext the petitioner could not have established physical relations. Cases where a woman knows that the offender is a married man but proceeds to have sexual relations with him on the pretext that he will marry her often result in acquittal. Cases where both the victim and the offender have an extramarital affair but a complaint is filed after they are not together anymore, don’t result in a conviction. Lastly, this provision of law is misused by some to extort money, as multiple such cases are filed with the promise of easy money.  

The author is a practising advocate in the Supreme Court of India. Views expressed are personal.