As we all know that the offence of Rape is said to be committed when the man does the act of sex with a woman if it was done against her will or without her consent. The consent is at the centre of the offence of rape. However there are tricky situations when the courts have to examine cases when there is consent of prosecutrix but such consent is contended to be no consent, in other words, a case where ‘yes’ actually means ‘no.
The present article is a discussion on the topic where the man establishes sexual relation with the woman on basis of false promise construes to rape or not?
Let’s see what Indian Penal Code says about Rape:
Section 375 of the IPC made punishable the act of sex by a man with a woman if it was done against her will or without her consent. The definition of rape also included sex when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Also, sex with or without her consent, when she is under 18 years is considered rape. However, under the exception, sexual intercourse or sexual acts by a man with his wife, the wife not being under 15 years of age, is not rape.
Section 376 provided for seven years of jail term to life imprisonment to whoever commits the offence of rape.
Whether consent obtained on the basis of promise of marriage would hold well as a defence to rape charge?
Well if we analyze section 375 of the Indian Penal Code then it is clear that there is no such mention of the consent obtained under the false promise of marriage.
Consent is at the centre of the offence of rape. Also if we look at the Section 90 of the Indian Penal Code defines “Consent” known to be given under fear or misconception. Consent is not such 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.
Rape by a false promise to marry is an extension of the third category i.e. Rape by Fraud. This new offence has been read into Section 375 of the IPC by using the definition of the word “consent” from Section 90 IPC. According to this definition, consent is vitiated if it is given under a misconception of fact.
Relying on this definition, the courts have interpreted the word “consent” in the description ‘secondly’ under Section 375 i.e. ‘without her consent’; and held that any consent given under a misconception of fact is vitiated and therefore the act becomes an act without consent, thereby making it rape.This extension and reasoning is a completely erroneous or misleading notion.
Reasons why any false promise to marry doesn’t qualify to fall within the ambit of rape u/s 375 IPC:
Being a penal provision, nothing ought to be read into Section 375 of the Indian Penal Code. It has to be construed strictly and its words cannot be strained to introduce a new meaning to the offence.There are six descriptions mentioned in Section
- Against her will.
- Without her consent.
- with her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
- With or without her consent, when she is under sixteen years of age.
If we analyze all these six descriptions then it is clear that each description is different and distinct from the other. The relevant factor that differentiates each description is the nature and quality of consent or the lack of it.Descriptions ‘firstly’ and ‘secondly’ deal with cases where consent is altogether missing. In ‘firstly’, the act is committed despite an express denial of consent.Juxtaposed to this is description ‘secondly’, which deals with cases where the act has been committed without any positive assertion or denial of consent i.e. cases where the victim was not in a physical or mental state to give consent. Therefore, both these descriptions deal with acts done without express or implied consent. Neither of these descriptions deals with the nature of the consent or its vitiation, as the element of consent is completely absent.The nature of the consent given and its vitiation is relevant in the next three descriptions i.e. descriptions ‘thirdly’ to ‘sixthly’. These descriptions specifically deal with cases where the act has been committed ‘with her consent’. By virtue of these descriptions, the consent given before the act stands vitiated or becomes irrelevant if the circumstances mentioned in the descriptions are applicable.Therefore, there is a clear distinction between the two broad sets of descriptions. There is no overlap in these descriptions and a case of no consent is very different from a case of a vitiated/invalid consent.Consent given on the pretext of a false promise to marry is a case of a vitiated/invalid consent. It is not a case where consent was not given at the time of the relevant act. Therefore, putting it under the description ‘secondly’ is violence to the scheme of Section 375.Had the legislature intended a false promise to marry to be an offence of rape, it would have been made a part of descriptions ‘thirdly’ to ‘sixthly’. This express omission, so to say, clearly shows the intention of the Legislature. The courts could not have made it to be one by misconstruing the description ‘secondly’.Therefore, even by using the general definition of the word “consent” provided in Section 90, the said act could not have been read into the description ‘secondly’ of Section 375 IPC.
In the context of Section 375 and promise to marry, where complex and intimate human relationships are involved, and where reliable evidence relating to intentions is very private and rare, applicability of the same test is constitutionally questionable.Any adjudication on the basis of promise to marry is extremely ambiguous and cannot meet the test of beyond reasonable doubt.
Uday vs State of Karnataka on 19 February, 2003
This was the first in the line of judgments held that a false promise to marry cannot come within the ambit of ‘misconception of fact’ – held in the following words:
“21.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”.
This Hon’ble Court in fact went to the extent of keeping the questions of law open on the exhaustive nature of Section 375 in the following words:
“26. In view of our findings aforesaid, we do not consider it necessary to consider the question as to whether in a case of rape the misconception of fact must be confined to the circumstances falling under Section 375 fourthly and fifthly, or whether consent given under a misconception of fact contemplated by Section 90 has a wider application so as to include circumstances not enumerated in Section 375 IPC.
The definition of consent under Section 90 could apply to other provisions in the IPC like Sections 87, 88, 89 of IPC, where the term “consent” has been used but not defined or restricted. However, it cannot apply to Section 375, where the scope and nature of consent and circumstances under which it stands vitiated has been expressly defined.Descriptions ‘thirdly’ to ‘sixthly’ expressly and clearly provide for scenarios where consent would be deemed to be vitiated. These descriptions, while adopting the principle of invalidation of consent given under fear – which is also a part of Section 90 – have clearly left out the principle of invalidation of consent because of ‘misconception of fact’ as a ground to negate the consent given for the relevant act. Moreover, the amended Section 375 has an explanation which itself defines ‘consent’. This explanation now itself ousts the need to use the definition under Section 90.
The general definition clause could not have overridden a clear and exhaustive special provision to introduce into the scope of the section an offence which was not intended by the Legislature.
RECENT VERDICT OF THE HON’BLE SUPREME COURT
In April 2019, the Supreme Court of India (SC) passed a verdict that stated that if a man goes back on his promise to marry a woman, sex between those consenting adults can’t be considered rape. But clarifying what it actually meant, The Apex Court held that that not every failed promise to marry can lead to a rape charge.
A bench headed by Justice DY Chandrachud made a distinction between breach of a promise and a false promise, which would lead to “misconception of fact” vitiating a women’s “consent” in law.
The bench held that where the promise to marry is false and 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 convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent” under Section 375 (rape) of the IPC.
“On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it,” said the judgment.
It emphasized that the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act and to establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established.
“The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act,” held the bench.
The court added that an individual, who makes a reasoned choice to act after evaluating various alternative actions as well as the various possible consequences flowing from such action or inaction, consents to such action.
The ruling has come in a matter wherein a Deputy Commandant in the CRPF had moved the apex court to get the rape FIR against him quashed.
The complainant in the matter, an Assistant Commissioner of Sales Tax, had alleged that on a sham promise of marrying her, the accused had established sexual relations with her.
The bench agreed to quash the FIR after underscoring that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. It noted that the complainant and the appellant knew each other since 1998 and were intimate since 2004 when they met regularly, travelled great distances to meet each other, resided in each other’s houses on multiple occasions, engaged in sexual intercourse regularly over a course of five years and on multiple occasions visited the hospital jointly to check whether the complainant was pregnant. The bench further noticed that the accused expressed his reservations about marrying the complainant in January 2014 because of their different castes but they still continued to engage in sexual intercourse.
“The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her,” it noted.”The appellant’s failure in 2016 to fulfill his promise made in 2008 cannot be construed to mean the promise itself was false,” maintained the court, adding the complainant was aware since 2008 that were issues with the duo getting married but they still continued to engage in sexual relations till 2015.
The allegations in the FIR, said the bench, belie the case that she was deceived by the appellant’s promise of marriage and hence, no offence of rape under Section 375 of the IPC is made out.
CONCLUSION
The framers of the law have specifically provided the circumstances when ‘consent’ amounts to ‘no consent’ in terms of Section 375 IPC. It is to note that consent for the sexual act on the pretext of marriage is not one of the circumstances mentioned under Section 375 IPC. The decisions of the Courts are based on inclusion of concept of ‘consent’ vitiated by ‘misconception’ as contained in Section 90 IPC. Such import of Section 90 into the reading of Section 375 IPC is erroneous as it is apparent from a reading of both Sections that except for the ‘misconception’ part, all other facets of consent being vitiated are already covered under Section 375 IPC. This also brings in play another principle of ‘Generalia Specialiabus non-derogant’ i.e. if a special provision is made on a certain matter, that matter is excluded from the general provision. Since lack of consent and its various circumstances have already been included in Section 375 IPC, section 90 IPC cannot be read into it. Also the Apex Court in its recent judgment on August 21, 2019 has clarified that “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act and to establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. Hence, passing a verdict that if a man goes back on his promise to marry a woman, sex between those consenting adults can’t be considered rape.
SUGGESTION
Rape laws should not be used to regulate intimate relationships, especially in cases where women are entering a relationship by choice. On number of occasions that the number of cases where both persons, out of their own will and choice, develop consensual physical relationship, when the relationship breaks up due to some reason, the women use the law as a weapon for vengeance and personal vendetta.”They tend to convert such consensual acts as incidents of rape maybe out of anger and frustration, thereby defeating the very purpose of the provision. This requires a clear demarcation between the rape and consensual sex, especially in the case where complaint is that consent had been given on promise of marriage.
“Registration of fake cases plays havoc with the actual crime statistics.Rape is the most hated crime in society. However, false complaints tend to trivialize it. False implication in a rape cases causes extreme humiliation, disgrace and mental agony to the accused. No sooner that the news of a person having been accused of rape spreads in society; he is humiliated, ridiculed and looked down upon by all. Even his honorable acquittal by the court is not taken note of and does little to salvage his lost honor and dignity. He has to live with the trauma of having been a rape accused throughout his life. Such cases cause people to view even genuine cases through a tinted lens. This skepticism can impede a victim’s quest for justice. We need to evolve a mechanism to separate the genuine cases from the fake ones and prevent abuse of the laws.
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