Courts Update If a woman allows a man to behave like...

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


New Delhi Sept 6(ILNS): The Supreme Court today dismissed a Special Leave Petition preferred by the State of Uttarakhand against an order of Uttarakhand High Court, setting aside the conviction of Devendra Singh Khinchiyal under Section 376(2)(n) [commits rape repeatedly on the same woman] of IPC.

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

Arguments Advanced:

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

Advocate Rawat argued that, when Khinchiyal was behaving like the husband of the prosecutrix and has filled up her ‘maang’ with ‘Sindoor’, 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.

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

Advocate Rawat replied, stating it was not a case of a live-in relationship and Khinchiyal was the one behaving like her husband.

Justice Indira Banerjee: “If a person willingly allows, a person who is not her husband, to behave like her husband, then what can be done.”

Advocate Rawat replied, stating the prosecutrix was led to believe, he was her husband.


On September 5, 2017, prosecutrix lodged a written report against Devendra Singh Khinchiyal, wherein she alleged that she and Khinchiyal had been in a relationship since the last three years and Khinchiyal had assured her that he would marry her and, on this assurance, Khinchiyal had established sexual relations with her. The prosecutrix further alleged that Khinchiyal subsequently, refused to marry her and cheated on her with some other girl.

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

Additional Sessions Judge, Bageshwar, on September 6, 2019, passed a judgment, whereby Devendra Singh Khinchiyal was convicted for the offense under Section 376(2)(n) [commits rape repeatedly on the same woman] of the India Penal Code and sentenced to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs. 20,000/-.

On November 20, 2020, the Uttarakhand High Court set aside the order and judgment of Additional Sessions Judge, Bageshwar, exonerating  Devendra Singh 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 prosecutrix, or the prosecutrix insisted or pressurized the appellant to marry her. It is only when the prosecutrix 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 an 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.”/ILNS/SR/KR/SNG


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