Sex after false promise of marriage amounts to Rape?

SEX AFTER FALSE PROMISE OF MARRIAGE AMOUNTS TO RAPE?

Author: Divya Vishal

India is still to a great extent conventional with regards to issues of sexuality and sexual acts. The issue is whether sex before false promise to marry amounts to rape under Section 375 IPC, or is it an instance of pity where the cure is more regrettable than the illness?

In 2014, The Hindu conducted a survey on rape cases pending in the trial courts of Delhi. It was found that “over 40% dealt with consensual sex, usually involving the elopement of a young couple and the girl’s parents subsequently charging the boy with rape. Another 25% dealt with a breach of promise to marry.”[1] The consent is the word that needs to be interpreted to know whether the ambit of the act amounts to rape or not. Rape on the basis of consent is of 3 types i.e. Forceful Rape (without the consent), Statutory Rape (where the victim is too small in age to give consent) and Rape by fraud (consent has been taken dishonestly).

Sex before the promise of marriage is an augmentation of the third classification i.e. Rape by Fraud. It is a new offence that has been added to Section 375 of the IPC by utilizing the meaning of “consent” from Section 90, IPC. As per this definition, the misconception of fact is the reason under which the consent becomes vitiated. Vitiated consent means invalid consent. In any case, this doesn’t qualify it as a circumstance where consent was not allowed at the hour of the pertinent act. In addition, Section 90 as a part of General Exceptions can’t override specific legislation under the Code. It can’t have any critical bearing to Section 375, where the augmentation and nature of assent and conditions under which it stands vitiated have been unequivocally characterized. The overall general definition proviso couldn’t have exceeded a sensible and explicit provision to bring into the degree of it an offense that was not arranged by the Legislature. Rape by Fraud is wrongdoing when such fraud hues the nature or motivation behind the sexual act itself as a crime. False assurances of marriage are not relevant as they don’t change the understanding in the victim’s mind of the actual “nature or purpose of the relevant act.[2] As said by Glanville Llewelyn William, a Welsh legal scholar in his book, “In rape, the issue is the woman’s consent to sexual intercourse with this man. If she does not know that the act is one of sexual intercourse, or if she is mistaken as to the identity of the man, then she does not consent, but otherwise, she does…There is, therefore, no need to inflate the grave offence of rape to make it cover sexual deceits in general.”[3] The sexual act before the promise of marriage does not change the nature and understanding of the act for which the consent is given. It might trigger the feelings of the victim but does not change the interpretation of the act for which she has given her consent. There are some of the judgments on these lines.

In the case of Uday v. Karnataka, the court held that “it, therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code…”[4] Therefore, the false promise to marry does not come under misconception to the fact. However, the court in the case of Dilip v. State of Bihar[5]without thinking about any of the applicable contentions, went to hold that the meaning of the word consent can’t be limited to Section 90; and a definition considerably more extensive than the one given in Section 90 can be brought into Section 375 to characterize the offense of rape. The suggestion of law set down in Dilip’s Case is being trailed by courts from that point onward. In April 2019 the Supreme court gave an important judgment in the case of Anurag Soni v. The State Of Chhattisgarh. The bench of Justice L Nageswara Rao and MR Shah held that “sexual intercourse under total misconception cannot be treated as consent.”[6]

The court has interpreted the word “consent” in many cases. In Kaini Rajan v. State of Kerala, the court held that, “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression “consent”. Section 90, though, does not define “consent”, but describes what not consent is. “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent.[7] The Supreme Court in the case of Dhruvaram Murlidhar Sonar v. The State of Maharashtra laid down a difference between consensual sex and rape. The court held that “There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. The acknowledged consensual physical relationship between the parties would not constitute an offence of rape.”[8]

The Orissa High court on 21st May 2020 in the case of G. Achyut Kumar v. State of Odisha [9] observed that legal expectation is that laws on rape ought not to be utilized to direct personal connections, particularly in situations where ladies have their assent and are entering a relationship by their own choice. Since the legal framework of provisions has explicitly given the conditions when consent adds up to no consent as far as Section 375 of IPC, assent for the sexual act on the promise of marriage isn’t one of the conditions given under Section 375 of IPC. Thus extending the scope of Section 90 of IPC to decide the impact of assent under Section 375 of IPC on its own merits a genuine relook. The rape law does not take into consideration the misery of the women from backward sections of the society where women are used for sex by men by trapping them into the false promises of marriage.

The law holding that false guarantee to marriage leads to rape has all the earmarks of being mistaken in the legal sense. Therefore, this aspect of crime needs to be carefully decided by the court taking into consideration the facts and circumstances of the case.

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[1] Mehul M Gupta ,Rape by a False Promise to Marry: A case-law non-offence, Available at https://www.barandbench.com/columns/rape-by-a-false-promise-to-marry-a-caselaw-non-offence#:~:text=Rape%20by%20a%20false%20promise%20to%20marry%20is%20an%20extension,under%20a%20misconception%20of%20fact. accessed on 27th July, 2020.

[2] Section 76(2)(a) of the Sexual Offences Act, 2003 (United Kingdom)

[3] Glanville Williams, Textbook of Criminal Law, Second Edition, Universal Law Publishing, pg. 559-560.

[4] (2003) 4 SCC 46

[5] (2005) 1 SCC 88

[6] 2019 SCC OnLine SC 509

[7] (2013) 9 SCC 113

[8] MANU/SC/1518/2018

[9] CRLA NO. 940 OF 2019

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