By Rakesh Bhatnagar
The fate of Indian hockey captain Sardar Singh, who is facing allegations of sexual harassment, exploitation, mental, physical and emotional torture made by his estranged girlfriend and British Hockey player Ashpal Kaur Bhogal, hinges on these questions: did he conduct his alleged sexual alliances under the pretext of marriage, or did the four-year, well-publicised relationship break up for altogether different reasons?
Singh and Bhogal are adults and from all accounts, it appears they were in a relationship. But the registering of the First Information Report (FIR) — the police have only accepted her complaint — is contingent on determining if Singh 'enticed' Bhogal into having sex with him by promising to marry her.
A special investigating team of Ludhiana Police is currently investigating the allegations made by Bhogal in a written complaint. In it, she alleges that Singh had sexually exploited her on the promise of marriage.
The police is taking due precaution and doesn’t want to display haste in filing an FIR merely on a complaint.
Though facts and circumstances of such cases invariably differ despite the charge being the same, the Supreme Court has held that it has to be ascertained whether a complainant was "coerced” or “misguided” by the accused. Her consent had been obtained “willingly” or “through deceit”.
Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether “the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise only to satisfy his lust, as the latter falls within the ambit of cheating or deception”.
“There is a distinction between the mere breach of a promise, and not fulfilling a false promise," the Supreme Court has ruled.
Differentiating “consensual sex” and “rape”, it also held that rape is the most morally and physically reprehensible crime in a society, as it is an “assault on the body, mind and privacy of the victim.”
In Yedla Srinivasa Rao vs. State of AP, the SC found that “the intention of the accused, right from the beginning was not honest and he kept on promising that he would marry her till she became pregnant”.
Thus, it held: "This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him”.
In that instance, the accused had made the false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the girl submitted to the “lust” of the accused “completely being misled by him by the promise for marriage”.
This kind of consent obtained by the accused with the clear intention to trick her into a sexual liaison cannot be treated as consent. If the court finds that consent has been obtained using deception and the accused persuaded a “girl of tender age” that he would marry her then it should be held that “such consent was not obtained voluntarily but under a misconception of fact and the accused right from the beginning never intended to fulfil the promise. Such consent cannot condone the offence".
Therefore, the investigators would initially determine whether Bhogal is of "tender age" and could be duped into sex on the promise of marriage.
In another case (Pradeep Kumar Vs State of Bihar), the SC had reiterated that a promise to marry “will not give rise to misconception of fact within the meaning of Section 90 of IPC”.
Therefore, the task before Ludhiana police is by no measure of innocuous nature. The entire evidence, if it’s available, would have to be judged from the judicial perspective and not merely as a formality to book a person on a complaint by a woman who alleges she has been sexually harassed and exploited on the false promise of marriage.
The stand taken by the SC in such cases is that if the intention of the accused is mala fide and he harbours clandestine motives, then he should be convicted of rape.
But the allegations so far known regarding Sardar Singh are limited and depend on what the complainant says. Only an intensive probe which could lead sleuths to abroad may offer reasonable evidence to book a person under the grave charges.