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Consent for sexual intercourse on pretext of false promise of marriage?

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INTRODUCTION

Marriage brings two individuals together as spouses and their bond is recognized by the community in the form of marriage rituals. Different religions perceive the concept of marriage from different perspectives. Hindu marriages are considered to be a union of two souls so that they can perform dharma (responsibility/duties). The Christian marriage happens for uniting with someone for the rest of their lives. Consummation also is a vital part of all marriages. Our society only takes consummation after marriage as a sacred one and it does not recognize consummation before marriages. Hence, engaging in a sexual activity/intercourse with a person other than their spouse is considered to be a wrongful act. Rape is a serious crime. Rape is defined legally as when a male penetrates a female’s vagina, anus, or mouth with a penis or any other object either with her consent (falling under any of the seven descriptions mentioned in Section 375 of the Indian Penal Code, 1860) or without her consent subject to the exception mentioned therein.

SECTION 375 AND SECTION 90 OF THE INDIAN PENAL CODE, 1860

Section 375 of the Indian Penal Code, 1860 states that a man commits rape when he penetrates his penis or inserts any object or part of the body other than the penis or manipulates any part of the body of a female so as to cause penetration into vagina, anus, urethra or mouth of a woman or applies his mouth in vagina, anus, urethra of a woman with or without consent as per any of the following seven descriptions-

  1. Against her will
  2. Without her consent
  3. With her consent, when consent is obtained by putting her or any other person she is interested in fear of death
  4. With her consent, when a man knows that he is not her husband and consent is given by her because she believes that he is another man whom she believes herself to be lawfully married
  5. With her consent, where the consent is obtained in the state of intoxication or in the state of unsoundness
  6. With or without consent when she is under eighteen years of age
  7. When she is unable to communicate the consent.

The person having sexual intercourse on the pretext of a false promise of marriage would amount to rape and he will be punished under Section 376 of the Indian Penal Code, 1860.

The consent is obtained by the misconception of fact under Section 90 of the Indian Penal Code, 1860.  Section 90 of the Indian Penal Code, 1860 has defined consent in negative terms, as it states that consent is not intended to be consent when it is given under fear of injury or misconception of the fact and the person doing the act knows or has the reason to believe that the consent was given in consequence of fear or misconception of fact. Consent implies the freedom of judgement and deliberation. The consent is only free when the person is not blinded by anger or deceived or ignorant or subject to duress. When a person had sexual intercourse on account of a false pretext of marriage, it is clearly a misconception of the fact and such misconception of fact has no value. It may arise out of fraud or misrepresentation of facts. Consent plays a major role in criminal law, its absence or presence makes a difference of crime and innocence. Thus, the promise to marry (upon which the consent is given to have a sexual relationship) which is not fulfilled subsequently, will be a misrepresentation of fact. In Vijayan Pillai v State of Kerala1 case, consent was defined as the ‘active will’ in the mind of a person to act on the knowledge of what is to be done.

Nowadays, our society gets more influenced by western countries. People may accept free sexual relations with each other while still being unmarried and the law acknowledges live-in relationships too. Choosing to enter a premarital sexual relationship is a part of individual autonomy but the issue arises only when there is a consenting relationship based on misrepresentation of the promise of marriage.

JUDICIAL PRONOUNCEMENTS

There are various judgements pronounced by the various courts of the country regarding the misconception of fact on the false promise of marriage. In Naushad v State of Uttar Pradesh2 case, the accused committed sexual intercourse with the aggrieved party by giving false assurance that he would marry her but after she got pregnant, he refused to marry her. It is evident in this case that the aggrieved party had sexual relation with the accused on the promise of marriage but the accused never intended to marry her and had sexual intercourse with her consent which was based on a misconception of fact as defined in Section 90 of the Indian Penal Code, 1860, so it amounts to rape.

In Yedla Srinivasa Rao v State of AP3, the victim use to cook in her sister’s house during the daytime. The accused used to visit the house and persuade the victim to have sexual intercourse by telling her that he would marry her. The accused had forced the intercourse without her will or consent and the accused promised to marry her. When she became pregnant he refused to marry her. The SC observed that it was a false promise made by the accused and the intention even from the beginning was not honest and the consent obtained from the victim is not valid consent so this act amount to rape. In Deepak Gulati v State of Haryana4 case, it was stated that intercourse under the promise to marry constitutes rape only if from the initial stage the accused had no intention to keep the promise. The accused is convicted only if the intention is mala fide.

Clause fourthly of Section 375 of IPC will apply when the accused had impersonated the husband of the victim and the victim gives the consent believing him to be a man to whom she is or believes to be lawfully wedded. Thus, the accused who knew that he is not the husband but represented himself to be the husband, is liable for rape.

LEGAL POSITION IN INDIA

Section 114 A of the Indian Evidence Act, 1972 provides that in the case of rape under Section 375 of IPC if the victim states in her evidence before the court that she did not consent then the court shall presume that the victim did not consent for the act. The false promise to marry is clearly a misconception of fact so the court shall not take the consent into account. But many contrary judgements have been given on consent obtained from the misconception of fact like in Jayanti Rani Panda v State of WB5 case a fully grown girl consented to the act of sexual intercourse on a promise of marriage and continued to indulge in such activity until she got pregnant, there is no misconception of fact and Section 90 cannot help. However, sometimes the strict interpretation of without consent may be punishable as rape so there must be an amendment in legislation like sexual intercourse with the victim on the pretext of a false promise of marriage so that the accused may not be acquitted of rape.

According to the survey conducted by The Hindu6, 25% of rape cases filed are the breach of promise to marry. Some male activists argue that these are false cases framed against the accused and could be treated as false rape cases. They also argue that Section 375 is an exhaustive provision under IPC where each explanation has its own meaning and it is distinct from one another and there is only narrow scope of a misconception of a fact, the victim is aware of the facts and circumstance of the act. It cannot be held invalid on a mere false promise.

CONCLUSION

Rape is considered to be a grave offence that has long-lasting effects on the minds of the victims. Rape reduces a woman to an animal used for sexual desires so it must be punished severely. In various cases, it has been seen that sexual intercourse has occurred on the false promise of marriage. If these are not punished then more and more crimes would occur so there must be a proper legislative amendment to deal with the accused who committed sexual intercourse with consent on the false promise of marriage. This sexual exploitation attacks the modesty of a woman. It must not be a chance for any person to exploit a woman in the name of a false promise of marriage. Thus, the accused should be punished for rape under section 376 of the Indian Penal Code, 1860 so that sexual intercourse based on the false promise of marriage will be prevented in the future.

CITATIONS

  1. HC: CRL.A No. 1851 of 2006.
  2. AIR 2014: SC 384.
  3. SC Appeal (crl.)  1369 of 2004.
  4. AIR 2013; SC 2071.
  5. 984 Cri LJ 1535 (Cal).
  6. Rukmini S, ‘The many shades of rape cases in Delhi’ The Hindu (New Delhi, 29 July 2014), https://www.thehindu.com/data/The-many-shades-of-rape-cases-in-Delhi/article60437026.ece.

This article is written by Sree Lekshmi B J, a third-year law student from Sastra University, Thanjavur.