Monday, August 8, 2022

If a woman allows a man to behave like her husband, he cannot be prosecuted for rape: Supreme Court

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The Supreme Court on Monday dismissed a Special Leave Petition preferred by the state of Uttarakhand against an order of the Uttarakhand High Court, observing that if a woman willingly allows a person, who is not her husband, to behave like her husband, then he cannot be prosecuted for rape.

The Division Bench of Justices Indira Banerjee and J.K. Maheshwari said they found no grounds for interference in the order of the Uttarakhand High Court.

Arguments Advanced:

Advocate J.S Rawat, appearing on the behalf of the State of Uttarakhand, submitted that an important question law is involved in the present case as the High Court has taken a very narrow definition of misconception of fact. He added that petitioner Devendra Singh Khinchiyal behaved like the prosecutrix’s husband and the woman also underwent abortion due to the physical relationship with Khinchiyal.

Advocate Rawat argued that when Khinchiyal was behaving like the husband of the woman and even applied vermillion on her forehead, when his intention was to not marry her, it clearly amounts to misconception of fact.

Advocate Rawat urged the Court to reconsider the interpretation of misconception of fact provided by the Uttarakhand High Court.

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Justice Indira Banerjee said, “It is a clear case of live-in relationship.”

When Advocate Rawat said that it was not a case of live-in relationship, Justice Banerjee replied, “If a person willingly allows, a person who is not her husband, to behave like her husband, then what can be done.”

Advocate Rawat again said that the woman was led to believe that he was her husband.


According to the woman, she had lodged a written report against Khinchiyal on September 5, 2017, alleging that she and Khinchiyal had been in a relationship since the past three years and he had assured her that he would marry her. On this assurance, Khinchiyal had established sexual relations with her. The woman further alleged that Khinchiyal subsequently refused to marry her and cheated her.

The woman, in her examination-in-chief before the Additional Sessions Judge, Bageshwar, stated that she knew Khinchiyal since 2015 and had established physical relations with him on the pretext of marrying him. In 2016, she underwent an abortion, yet maintained sexual contact with Khinchiyal, upon his assurance of marrying her. She further stated that even though they were not married, Khinchiyal behaved like her husband.

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The Additional Sessions Judge, Bageshwar, on September 6, 2019, passed a judgement, convicting Khinchiyal under Section 376(2)(n) [commits rape repeatedly on the same woman] of the Indian Penal Code and sentenced him to Rigorous Imprisonment for 10 years, with Rs 20,000 fine.

On November 20, 2020, the Uttarakhand High Court set aside the order and judgement of the Additional Sessions Judge, Bageshwar, exonerating Khinchiyal.

The High Court held,

“It has not come anywhere in the evidence that the appellant had given any definite date or any timeline to marry the woman, or she insisted or pressurized him to marry her. It is only when she allegedly came to the knowledge that the appellant brought some other girl in his house that she realized that the appellant has disowned his promise of marrying her. She was intelligent enough to understand the significance and moral quality of the act she was consenting to. She even became pregnant and underwent abortion, yet she did not resist the overtures of the appellant nor insisted to marry her. The upshot of the above discussion of the facts and evidence of the case and the legal proposition is that the consent given by the prosecutrix cannot be said to be given under a misconception of fact.”

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