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In a matter involving the establishment of a physical relationship under the garb of contracting marriage, the Allahabad High Court held that smearing vermilion on the head of the woman is sufficient enough for a woman to believe that the man would, in fact, marry her for the act "conveys a man's promise and intention to marry."

A bench of Justice Vivek Agarwal observed that the ceremony of 'Maangbharai', not only is significant in Hindu rituals and customs but also holds a lot of significance as an intention to show that the person smearing the vermilion has accepted the other person as his spouse.

Holding the same as above, the court rejected one Vipin Kumar’s application seeking quashing of the summoning order, charge-sheet and entire proceedings of the case under Section 376 of IPC against him on the ground that the victim had consensual sex with him.

Relying upon earlier rulings of the Supreme Court, the applicant had urged before the court that once the girl gives consent to the physical moves of a person she is consciously in love with, then that person resenting his offer of marriage, later on, cannot be said to have committed rape.

However, taking note of the FIR, the court rejected the applicant’s contention and said that as was evident from the FIR itself, the victim woman had denied consent to the establishment of a physical relationship and she only reluctantly agreed for the same when she was promised of entering into marriage.

Denying relevance of the ruling of the Supreme Court in Pramod Suryabhan Pawar vs. The State of Maharashtra and others to the present case, the court said that to establish whether the “consent” was vitiated by a “misconception of fact” arising out of the promise to marry, two propositions must be established.

First, the promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given, and second that the false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act, the court held.

Noting that in the present case, the applicant/accused had denied marriage on account of family traditions, court held that the man, a grown-up person working in the Border Road Organization, that too on a responsible post of J.E., is supposed to have knowledge of his family traditions.

Therefore, court held that the day when the applicant made a promise, he was aware of the fact that as per his family traditions, he will not be able to marry the girl to whom he is making a promise of marriage for extracting a favour of physical relations.

The court held,

“Secondly, the act of the applicant of carrying out ceremony of "Maangbharai" is another proof of the fact that he entered into a physical relationship on the solemn promise of entering into a wedlock, whereas from the beginning, the applicant was aware that as per his family traditions and customs, he will not be able to marry the girl in question.”

Court said that as far as intention and motives are concerned in the present matter, they will be subject to final scrutiny during the trial, but, prima facie, two facts namely knowledge of family traditions of the applicant and act of the applicant to smear head of the victim with vermilion when taken into consideration, no case is made out for quashing of proceedings at this stage at all.

Therefore, the accused’s application under S. 482 of Cr.P.C. was dismissed.

Case Title: Vipin Kumar @ Vikki v. State of U.P. and Another