ABSTRACT

Rape is one of the heinous offences defined under Indian Penal Code as it shakes the very core of the victim’s life and also defiles the soul of a helpless woman and same should not be misused to regulate intimate relationship especially when woman have agency and are entering a relationship by choice otherwise it would nullify the very purpose of rape laws. However, legal experts believe there are grey areas in Section 375 that allow complaints to take advantage when consensual relationship turns sour. According to Delhi Police, among all rape cases filed in 2016, a massive 25% fell under the category of “sexual intercourse based on false promise of marriage.” This issue had arised before the apex court and various high courts for consideration on different occasions and various points were discussed and it was observed “the law holding the false promise of marriage amounts to rape appears to be errorneous.” The court also observed that despite an evolving society, the baggage of morality continues to exist. Society was trying to be liberated but where it comes to the matter of sex and sexuality. The virginity is the prized element and pre-marital sex is “ matter of censure”.

Keywords: False promise, Intimate relationship, Consensual sex, Misconception of fact, Breach of promise

Whether Sexual intercourse based on false promise of marriage, amounts to rape?

In recent years, filing rape case under false promise of marriage have Soared. “Rape is one of the most heinous offences defined under Indian Penal Code and made for the protection of women under society and same should not be used to regulate intimate relationship especially when women have agency and are entering a relationship by choice,” expressed by Justice SK Panigrahi , he also added that it is an undenying fact that our society is still largely conservative where it comes to the matter of sex and sexuality. The virginity is a prized element. Questions are often raised as to how this kind of cases are addressed by the statute and judicial pronouncements and whether this type of false promise to marry induced sexual intercourse is a rape or not?

There is no straight jacket formula before the courts to deal with this subject, to ascertain the guilt of the accused the court must consider the facts, circumstances, background in each case and carefully examine the evidence on record.

The definition of rape as codified in Section 375 of the Indian Penal Code wherein rape has been defined as certain sexual acts when committed on a victim, falling under any of the seven descriptions: First, against her will; second, without her consent; third, with her consent, when consent has been obtained under fear of death or hurt; fourth, where consent has been given by the victim in the wrong belief that the man is her husband; fifth, when the consent is given when she is of unsound mind or intoxicated and unable to understand the nature of consequences of what she is consenting to; sixth,consent from a girl under the age of 18 years; and seventh, when she is not in position to communicate the consent. The septette ingredients mentioned hereinabove does not cover the false-promise-of-marriage induced sexual intercourse.

Whereas section 90 of the IPC talks about consent known to be given under fear or misconception. This section says that it would not amount to consent if it is obtained by putting a person under fear or under a misconception of facts. So, if a man obtains a consent of any woman by putting her under misconception of fact, in that case it would not amount to consent.

The question was raised for the first time before the Calcutta High Court in Jayanti Rani Panda v. State of West Bengal and ors1. had held that the consent of full grown girl to the act of sexual intercourse on a promise of marriage cannot be treated as an act induced by misconception of fact, also the similar view has taken in the later decisions in Hari Majhi v. The State and In Mir Wali Mohd Vs. The State of Bihar2. However, In Saleha Khatoon v. State of Bihar3, Patna High Court have taken a contrary view.

As there was a conflicting views of different High Courts, the Apex court in Uday v. State of Karnataka4 has examined general concept of consent to arrive at the conclusion that consent given on false promise of marriage would amount to consent under misconception of fact and therefore, such a consent would be vitiated. This judgement derived strength from English case of Holman v. The Queen5 which held that the consent to intercourse may be hesitant, relunctant or grudging, if it is consciously permitted, it is consent.

The Supreme Court in Yedla Srinibas v. State of Andhra Pradesh6 held that the voluntary consent depends on facts of each case and factors such as age of the girl, her education, her social status and likewise the social status for the boy. Though the version of the victim also commands great respect and acceptability in rape cases, if there are circumstances which cast some doubt in the mind of the court about the veracity of the victim’s evidence, then, it is not safe to rely on the uncorroborated version of the victim of rape.

The Apex court in Vinod Kumar v. State of Kerala7 held that it is not possible to convict a person, who did not hold out the promise and not present in the false scenario which had the consequence of other party inducing commission of an act. In such cases, the accused cannot be held to be culpable. In fact, such cases are on rise, where both the persons, out of their own sweet will and choice, develop consensual physical relationship but when the relationship gets sour for some reasons, the women use the law as a lethal weapon for vengeance and personal vendetta. They, out of anger or frustration, tend to convert such consensual acts as incidents of rape. This misuse defeats the very purpose of the provision of law.

Relying on the Apex Court decision In Vinod Kumar v. State of Kerala8, In April 2017, Justice Pratibha Rani of the Delhi HC acquitted a man in a similar allegation of rape. The HC observed that in a "number of cases where both persons, out of their own will and choice, develop a consensual physical relationship, when the relationship breaks due to some reason, the women use the law as a weapon for vengeance and personal vendetta". Calling out for a clear demarcation between rape and consensual sex, the judge said: "They tend to convert such consensual acts as an incident of rape out of anger and frustration, thereby defeating the very purpose of the provision."

Justice Mridula Bhatkar of Bombay High Court also made some pertinent observations while granting bail to a 21 year old youth who had been accused of Rape by a former girlfriend.

Section 375 of IPC provides that if a women consented to sex under a false promise of marriage, rape charges can be filed against a man. However, legal experts believe there are grey areas in section 375 that allow complaints to take advantage when a consensual relationship turns sour. According to Delhi Police, among all rape cases filed in 2016, a massive 25 per cent fell under category of "sex under false promise of marriage" as the cause.

The court observed that despite an evolving society, the baggage of morality continues to exist, earlier a woman was expected to be a virgin at time of marriage however the young generation had plenty interactions with the opposite sex. Society was trying to be liberated but there were still varied notions of morality where pre-marital sex is "matter of censure".

In the Judgment of Pramod Suryabhan Pawar v. The State of Mashrashtra and Ors9 delivered by Justice DY Chandrachud and Indra Banarjee to summarize the legal position that emerges from the above cases, the court made some pertinent observations :

There is a clear distinction between rape & consensual sex and court must carefully examine whether the accused had actually wanted to marry the victim, or had malafide intention or motives and had made a false promise only to satisfy his lust as the latter falls within the ambit of cheating or deception. In cases where the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to obtain her consent for establishing sexual relations with her, then the consent would amount to consent obtained under a misconception of fact (Section 90 IPC) thus not operate as a defence to charge of rape.

There is a difference between false promise and breach of promise. A promise is false if the promisor had no intention of fulfilling the promise at the time when it was made. Thus it was false from the beginning and the promisor made it solely with the object of getting the woman to consent. On the other hand breach of promise may happen due to number of factors the boy may fall out of love after sometime, he might be compelled by his family to marry someone else or there could be many other reasons, why a boy may not fulfil his promise of marriage but, this doesn’t mean that the promise was false from inception.

In the case of G. Achyut Kumar Vs. State of Orissa10, the Orissa High court ruled that sex on the pretext of false promise doesn’t amounts to rape. Justice SK Panigrahi, on behalf of Orissa High Court Bench, said that rape laws shouldn’t be used to ‘regulate intimate relationship’. He also added, “The rape law often fails to capture their plight. The law is well settled that consent obtained on a false promise of marry is not a valid consent, since the framers of the law have specifically provided the circumstances when ‘consent’ amounts to ‘ no consent’ in terms of section 375 of IPC. Hence, the automatic extension of provisions of section 90 of IPC observes a serious look. The law holding the false promise amounts to rape appears to be errorneous”.