Met on Tinder, travelled for years: Calcutta High Court clears military officer of rape despite ‘breaking promise to marry’

Justices Arijit Banerjee and Apurbha Sinha Ray pronounced the order on May 15.

“Keeping in mind the age, educational qualification, social background, and standing, and the fact that their relationship spanned over a period of three and a half years, it is difficult for us to accept the prosecution version that the woman agreed to establish a physical relationship with the man under a misconception of fact, only based on his promise to marry her,” the Calcutta High Court said on May 15.

The bench said it saw that two adult persons, both seemingly matured and definitely educated and cultured, both having a certain social standing, struck up a friendship on a social app called Tinder, which rapidly matured into an amorous relationship.

‘Met on Tinder, voluntary relationship’

• If there is consensual sexual intercourse between a man and a woman, both having attained the age of majority, the man cannot be held to be guilty of the commission of the offence of rape.
• In the present case, it is not the prosecution’s contention that the physical relationship between the two was not consensual or that the man forcibly established a physical relationship with the woman against her will.
• The man and woman indulged in a sexual relationship voluntarily, which is not in dispute, the Calcutta High Court noted.
• The case of the prosecution is that the man obtained the woman’s consent fraudulently, which vitiated such consent.

• The prosecution argued that in view of Section 90 (consent known to be given under fear or misconception) of the Indian Penal Code (IPC), the woman’s consent did not amount to consent as understood within the scope of Section 375 (rape).
• In the present case, the Calcutta High Court found that the man and woman came to know each other on a dating app called ‘Tinder’ sometime in May 2018. Their friendship and intimacy developed rapidly.
• It is not in dispute that the two visited many places in India together. The man used to stay with the woman’s parents in Kolkata whenever he visited the city, even if the woman was elsewhere.

‘Not possible to accept woman was duped’

• There is nothing on record to show that the man, from the very inception of his relationship with the woman, had no intention of marrying her, the Calcutta High Court observed.
• Being a mature adult, the woman must have realised that he could only marry her if he was successful in getting his marriage with his wife dissolved.
• Given the nature of the relationship between the two and their respective standings in life, it is not possible to accept the prosecution’s case that the woman was duped into consenting to having a sexual relationship with the man.
• The said woman, being in love with the man, voluntarily established a physical relationship with him without being induced to do so by him by meting out a false promise to marry, the Calcutta High Court said.

‘World of difference between miscarriage and abortion’

• In the written complaint, the woman alleged that due to her sexual relationship with him, she got pregnant, and he forced her to have an abortion.
• However, in her deposition, she has stated that after she conceived and then came to know that he was a married person, and after he refused to marry her, she was so stressed that she suffered a miscarriage and lost the child, the Calcutta High Court noted.
• There is a world of difference between suffering a miscarriage due to stress and being forced to undergo an abortion. This is not a minor inconsistency.
• Abortion is an active medical procedure, miscarriage is wholly different, the Calcutta High Court pointed out.
• A pregnant lady may suffer a miscarriage due to an accident or some medical condition that she may be having. There is no scope for mistaking one for the other.

Background

The prosecution’s case originated from a complaint filed by a woman who met the appellant through the dating app Tinder in May 2018. According to the survivor, the man represented himself as “single” and induced a physical relationship with her by making a false promise to marry her and exploited her sexually for about three and a half years.

The woman stated that the relationship started when she was about 26 years old, he was about 28 years. The man was employed in the military in a gazetted post, and the woman had a job in Mumbai.

During the next three and a half years, the couple travelled extensively across India and cohabited in Mumbai, Bengaluru and Kolkata. Although the woman allegedly discovered in September 2018 that the man was already married, by that time, she had become pregnant, but claimed to have lost the child to a miscarriage. However, she continued the relationship after he assured her that he would marry her following his divorce.

The man eventually obtained a decree of divorce in November 2020 with the assistance of a lawyer suggested by the survivor’s mother. However, the relationship soured in 2021, leading to a criminal complaint after the man allegedly refused to fulfil his promise to marry.

The trial court had originally convicted the man under Section 376(1) (punishment for rape) of the IPC, concluding that the woman’s consent was vitiated by a “misconception of fact” under Section 90 of the IPC, as the promise of marriage was deemed false from the inception. The petitioner then challenged his conviction in the Calcutta High Court.