Does Sexual Intercourse On A False Promise To Marry Amount To Rape?

Rape is universally considered to be amongst the most morally and physically reprehensible crimes in society, an assault on the body, mind, privacy and the entire fabric of the victim. Rape is a crime of violence, a denial of sexual freedom, and a privacy violation.It is often said that a woman who is raped undergoes two crisis- the rape and the subsequent trial. However good the law may be, rape is a difficult crime to prove,given the generally weak investigative framework, and too many technicalities on the basis of which an accused can go free. There are too many steps that must be taken by the police to ensure that there is enough evidence available and more often than not the accused is set free due to lack of evidence and the vulnerable and feeble victim is humiliated and her dignity is shredded by the system which she trusted to give her justice. The societal stigma attached to the crime is such that many a times a crime would go unreported by the victim, in order to escape the repercussions she will be subject to by the society.

Section 375 embodies and defines the conditions under which a man can be convicted of rape read with Section 90 along with judicial decisions provides the basic framework of rape law in India.

In addition to being a crime of violence, rape can also be committed by obtaining consent by undue influence, fraud or cheating. One of the fundamental issue in the offence of rape is consent. Its presence or absence makes sexual intercourse lawful or unlawful. ‘Consent’ matters because to locate consent with respect to sexual intercourse is to locate the normative boundary between criminal rape and non-criminal sex. Consent may be implicit or implied, coerced or misguided, obtained willingly or through deceit. The question of determining Consent can be tricky at times, and the dilemma becomes apparent when it comes to sexual intercourse on a false promise to marry.

Meaning Of Consent-

Section 375 culls out different grounds under which an act of sexual intercourse with a woman will amount to rape. One of the grounds is “absence of consent” of a woman. Section 90 provides a negative definition of the word ‘Consent’. The sections says that "A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception."

Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side. Consent means an active will in the mind of a person to permit the doing of the act complained of, and knowledge of what is to be done, or of the nature of the act that is being done, is essential to a consent to the act. Consent supposes three things-a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of mind.

Consent given firstly under fear of injury and secondly under misconception of fact is not ‘Consent’ at all. That is what is enjoined by the first part of section 90 of the Indian Penal Code. These two grounds specified in section 90 are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries.

Consent under this code is not valid if obtained by either misrepresentation or concealment, and implies not only a knowledge of the risk but a judgement in regard to it, a deliberate free act of mind.Consent given under a misconception is invalid if the person to whom the consent is given is aware of its existence, however an honest misconception by both the parties, however, does not invalidate consent.

Therefore, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act is conscious of the fact or should have a reason to believe that but for the fear or misconception, the consent would not have been given.

Meaning Of Consent Under Common Law-

Under common law consent to engage in sexual intercourse is vitiated due to fraud or misrepresentation only when the fraud or misrepresentation extends to the “nature or quality of the act in question” or to the “identity of the person” as was stated in the case of R. v. Clarence.

Similarly in R vs Linekar where the accused promised to pay for sexual intercourse but later on refused to pay, was held guilty for fraud and not rape.

The High Court of Australia in R v. Papadimitropoulos held that-

Rape is carnal knowledge of a woman without her consent: carnal knowledge is the physical fact of penetration; it is the consent to that which is in question; such consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing. But once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape.

Therefore under this principle of common law a man can be held guilty of rape if he has sexual intercourse with a woman on the pretext that the act done will improve the woman’s concentration or by indulging in sexual intercourse after hypnotizing her.

Thus under common law a false promise to marry creates neither any mistake on the subject matter of identity of person nor on the nature of the act of act of sexual intercourse, it cannot vitiate consent of the victim and a man cannot be held guilty of rape

False Promise To Marry And Rape Law?

In today’s world where relationships, live-ins are common place and accepted, and sex is no longer a rigid, controlled and repressed act . In times of changing sexual moralities, where the act of consensual sex between two adults is seen as a liberating act, rather than a sin, is there a place where a line has to be drawn between rape and consensual sex, especially where the chances of being abused are so high. Imagine a live in couple who freely engage in sexual intercourse as a couple. However if the man eventually breaks up with the woman, and the woman out of scorn alleges that the man had had sexual intercourse with her on the pretext of marriage and then had left her or on the other hand there may be a situation where the man, may, in return for sexual favours promise to marry the woman and then leaves her. It is at this stage the judiciary has to decide as what the real intention of the man was? Did he actually want to marry or were his motives mala fide?

Indian Courts have been confronted several times with the question “whether Sexual intercourse with any girl on a false ‘promise of marriage’ is consent or not? If not Rape, is it ‘cheating’ or not? The Judge of the Patna High Court in Saleha Khatoon vs State of Bihar held that consent obtained on the basis of fraud or consent which is based upon deception cannot be termed as consent under section 90 of IPC and such consent comes within the ambit of the ingredients of definition of rape. In Jayanti Rani Panda Vs State of West Bengal A Division Bench of the Calcutta High Court noticed the provisions of Section 90 of the Indian Penal Code and concluded :-

"The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. S. 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her."

The same view was reiterated in Hari Majhi vs. The State and Abhoy Pradhan vs. State of West Bengal wherein the Calcutta High court set aside the conviction under Section 376 of IPC on the basis that it doesn’t attract the provisions of section 90 as there was a breach of promise and not a false promise.

By observing that Section 90 cannot be called in such a case the court raised an inference that for cases in which there is “breach” of promise, a man cannot be convicted for rape whereas if there was a false promise from the beginning, a man can be convicted for rape, therefore if a man promises to marry a woman without any ulterior motives and which subsequently leads to sexual intercourse, he cannot be convicted for rape but if the promise if false from the beginning and it was made in return for sexual favours, he can be convicted of rape.

It was in Uday Vs State of Karnatka that the Apex court decided that "a false promise is not a fact within the meaning of the Indian Penal Code" and hence a false promise to marry cannot fall under misconception of fact and that the consent given by the woman 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 factbut they added that there is no strait jacket formula for determining whether consent given by the woman to sexual intercourse is voluntary, or whether it is given under a misconception of fact and that the courts needs to look at surrounding circumstances and weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.

The decision of the SC in Uday was followed by the Calcutta High Court in Krishna Padho Mahto v. State of West Bengal and in Shamshad Ali v. State, where it was found that consent was given understanding the nature and consequence of sexual intercourse, and accordingly, charges of rape were negatived.

The decision of the chancery court in Edgington v. Fitzmaurice laid down that a misstatement of the intention of the defendant in doing a particular act may be a misstatement of fact, and if the plaintiff was misled by it, an action of deceit may be founded on it. The judge further observed that in order to amount to a misstatement of fact the existing state of things and a misstatement as to that becomes relevant.

Following the principle of the above decision it is observed that in the absence of evidence Section 90 cannot be called in aid in support of the contention that the consent of the complainant was obtained on a misconception of fact.

In Dileep Singh Vs State of Bihar a two judge bench of the Supreme Court sought to undo the decision in Uday’s case and ruled that consent obtained by false promise is vitiated by Section 90 and hence, sexual intercourse, with consent thus obtained, is rape. In this Case, the lower court found the prosecutrix to be minor at the time of sexual intercourse and accordingly, convicted the appellant for rape under Section 376 of IPC.

On the High Court confirming the findings of the lower court as regarding the age of the prosecutrix the case went to the Supreme Court The SC on a re-appreciation of evidence found that neither was the prosecutrix a minor at the relevant time nor did the appellant have sexual intercourse with the prosecutrix “against her will”. The SC, ruled that a false promise of marriage is covered by the expression “misconception of fact” and a consent thus obtained is vitiated by Section 90; accordingly, it was held that sexual intercourse, consent to which is obtained by making a false promise of marriage, is rape within the meaning of Section 375 of I.PC.

However, in the instant fact situation, the SC found it to be a case of breach of promise and not false promise and acquitted the appellant of the charge of rape under Section 376 of the I.P.C.

The Apex court in Dileep's case relied on the findings of the Madras High Court in Jaladu N, Re where a Division Bench of the madras High Court considered the scope and amplitude of the expression 'Misconception of fact' occurring in section 90. It was held:

"The expression ‘under a misconception of fact’ is broad enough to include all cases where the consent is obtained by misrepresentation, the misrepresentation should be regarded as leading to misconception of the facts with reference to which the consent is given"

In Yedla Srinivasa Rao vs. State of A.P the Hon'ble Supreme Court, in the facts and circumstances of the case before it, 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. The Hon'ble Supreme Court then, inter alia, held as under:

"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. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent. If the court of facts come to the conclusion that the consent has been obtained under misconception and the accused persuaded a girl of tender age that the he would marry her then in that case it can always be said 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"

In Pradeep Kumar Vs State of Bihar while reiterating that that a promise to marry without anything more will not give rise to misconception of fact within the meaning of Section 90 clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. The Apex court qualified the proposition which it stated earlier by adding the qualification at the end unless the court can be assured that from the very inception the accused never really intended to marry her.

Justice VK Jain, in the case Nikhil Prasar Vs State of Delhi wherein the boy had agreed to marry the girl and the proposal was formalised by the two families at a roka (engagement), after the boy already had sexual intercourse with the girl subsequent to which he decided not to marry her on flimsy grounds clarified the legal position on such cases and held that case where the girl agrees to have sexual intercourse on account of her love and passion for the boy and not solely on account of the misrepresentations made to her by the boy or a case where a boy, on account of circumstances, which he could not have foreseen or which are beyond his control, does not marry her despite having all good intention to do so, has to be treated differently from a case such as the present one.

The crux of all these judgements is whether consent under section 90 of IPC is vitiated by the false promise to marry. Uday’s case seems to take the view that a false promise to marry cannot normally fall under misconception of fact whereas Dileep’s case seems to take a somewhat contrary stand and widens the scope of section 90 to include a false promise to marry to come within the scope of misconception of fact.

If the courts takes the view taken in Uday’s case that sexual intercourse with a girl on a false promise to marry does not amount to rape, then it will result in unscrupulous and mischievous persons taking undue advantage of innocent women, therefore the correct position is that if the accused, since inception had no plan of marrying her but only wanted to sexually exploit the woman then that man should be held guilty of rape and consent thus obtained on a false promise to marry should sttract the provisions of section 90 of the Indian Penal Code.

Even after the Supreme court verdict Justice AH Joshi in the case of Sandeep Kaniram Rathod vs State of Maharashtra wherein Rathod, then 30 years old, was serving at a forest office near the victim's house. He developed physical relations with her and promised marriage. She informed her parents when she became pregnant and Rathod was arrested following a complaint lodged by her parents. Charged with repeatedly having sexual relations with an "underage" girl the sessions court sentenced him to 10-year rigorous imprisonment. But the High Court observed that sexual relationship after promising marriage and reneging on it does not amount to rape.

Conclusion

An overhauling of rape laws is; what is needed to widen the scope of the section (so that even women can be convicted under 375 of IPC) and in reclassification, the offence must be categorized in different degrees depending upon the severity, as it exists n many Legal Systems.

For proving the first degree of rape; some element of force and complete absence of consent, should be made a requisite. A violent intercourse; in complete absence of consent of victim is needed to prove first degree rape. Further, such cases where consent is obtained under mistake of fact, misrepresentation or application of fraud can be categorized in second degree of rape with lesser punishment than the first degree. The Most difficult thing to prove under these circumstances is whether the accused had any intention of marrying the woman from the beginning or was it just a false promise in return for sexual favours.

The stand taken by the Supreme Court is that if the intention of the accused is malafide and he has clandestine motives, then he accused should be convicted of rape. If this is not done then, it will enable immoral and dishonest persons, including those who come to this country for such very purposes, to exploit girls belonging to weaker sections and lower strata of society by alluring them with false promise of marriage pressuring them to have physical relations with them by making them believe that they are going to marry them and that there was nothing wrong in having such relations with a person who is very soon going to be her husband and later on turn; their back at her, in a comfortable belief that the law being on their side, they can easily get away with their misdeeds.

If the accused are not convicted of rape then the country will become a safe haven for rapists because it will be very easy for them to commit 'legal rape' and get away with as they will always have this excuse as an alibi to help them escape punishment.

The courts cannot and should not give such a license to those who keep on looking for opportunities to exploit the sentiments and vulnerability of Indian girls who perceive marriage as a pious bonding; and not as a union of two bodies. Allowing such persons to go scot free after exploiting poor and helpless girls in this manner could never have been the intention of the legislature which considered rape to be such a heinous as to attract imprisonment up to life.

Footnote:

Ibid., Nayamuddin (1891) 18 Cal 484, 1989 Cri LJ 202 (Patna),1984 Crl. L.J. 1535,1885 (29) Ch.D.459,(2005) 1 SCC 88,Supra Note 22,ILR (1913) 36 Mad 453,2006 VIII AD (SC) 309,2006 VIII AD (SC) 309,2007(7)SCC413,Bail Application. No. 1745/2009,2010 ALL MR (Cri) 2673

Contributed by – Gayatri Chadha and Amitabh Tewari