This article has been written by Anindita Deb, a student of Symbiosis Law School, NOIDA. The article aims to discuss the court’s views and add personal comments on a recent case of rape under the promise of marriage committed in the Ujjain district of Madhya Pradesh.
Table of Contents
Cases of rape on the pretext of marriage are a common phenomenon in the legal landscape of India. In India, it was considered a crime, and those who committed it were punished. Marriage is regarded as a holy bond between two individuals. It is more than just a physical relationship; it also entails emotional and spiritual intimacy between partners. Marriage is considered to be undertaken in ancient Hindu rules to achieve dharma (duty), artha (possessions), and kama (intimate desires). Sexual intercourse or consummation is seen as a Hindu rite that takes place after the marriage ceremony. Consent is extremely important in this physical relationship, and it is required that mutual consent be present at the time of sexual intercourse. That said, taking consent for sexual intercourse under the pretext of a false promise of marriage, would be considered rape and prosecuted under the relevant section of the Indian Penal Code. Some “men’s rights activists” argue that the charges levelled against the accused should be classified as “fake rape cases,” because they are designed to establish the accused’s guilt. However, some advocates argue that these incidents should be prosecuted since they jeopardise women’s positions in patriarchal societies. This article is focused on discussing the question of sexual intercourse under the false promise of marriage that was raised before the Indore bench of the Madhya Pradesh High Court in the case of Abhishek Chouhan v. State of Madhya Pradesh (2021).
The pretext of false promise to marry, consent, and rape : what are the laws
The subject of whether sexual intercourse with women constitutes rape if consent was obtained through a false promise of marriage, as defined under Section 375 of the Indian Penal Code, 1860, often appears in court. This false promise of marriage in order to get consent for sexual intercourse is classified as a “misconception of fact” under Section 90 of the Indian Penal Code, 1860. As a result, it would be charged under Section 375 of the IPC because it is not deemed a valid consent in the eyes of the law. The second explanation of Section 375 of the IPC states that rape is punishable if sexual intercourse is carried out without the consent of the victims.
However, Indian courts have begun to take a different approach to Section 375, interpreting the term “consent” in a broader sense. Several court decisions have interpreted “consent” in ways that go against basic statutory interpretation principles. In some situations, courts have ruled that if a man fails to marry a woman despite making a promise, he cannot be prosecuted under Section 375. To hold an accused guilty under Section 375 of the IPC, strict interpretation of statutes is required. The Karnataka High Court held in Honayya v. State of Karnataka (2000) that mere “breach of promise” would not fall under the definition of “misconception of fact” under Section 90 of the IPC. As a result, the court determined that sexual intercourse obtained with the promise of marriage, which was later broken by the accused, did not constitute rape under Section 375 IPC. The court, however, did not clearly decide that a fraudulent promise to marry did not fall within the category of “misconception of fact,” and instead classified the false promise as a fraud.
According to Section 114-A of the Indian Evidence Act, 1872, in a case for rape under Section 375 of the IPC, if the sexual intercourse by the accused is proven and the question before the court of law is whether the prosecutrix gave consent or not, and she states in her evidence that she did not, the court shall presume that the act was done without her consent. This clause was added to the Evidence Act in order to safeguard women from society’s mass atrocities.
Abhishek Chouhan v. State of Madhya Pradesh
Facts of the case
A single-judge bench of the Madhya Pradesh High Court rejected the bail plea of the accused/applicant before the Court has been charged with an offence punishable under Sections 376, 376(2)(N), 366 of the IPC, as well as Sections 3, 4,5-I, and 6 of the Prevention of Children from Sexual Act, 2012. It was stated that he raped the prosecutrix under the pretext of marriage, but his counsel maintained that the accused victim was not a minor at the time of the alleged crime and that she was a consenting participant. It was also claimed that the girl’s parents were opposed to their marriage since the applicant and the prosecutrix are of different religions (the applicant is a Hindu and the prosecutrix is a Muslim), and so he had been implicated in this case.
The State, on the other hand, claimed that he frequently raped the prosecutrix under the false promise of marriage since October 2018 and then refused to marry her by stating that his marriage was arranged with someone else. After that, when he told the victim that he was getting married to someone else, the prosecutrix tried to commit suicide by consuming phenyl, but fortunately, she was saved.
Following were the issues raised in this case:
- Whether sexual intercourse under the false pretext of marriage constituted rape.
- Whether consent of the prosecutrix obtained under the “misconception of fact” stated under Section 90 of the IPC.
After reviewing the records, the Court decided that it was not a case fit for granting bail because the applicant had evidently enticed the prosecutrix into a physical relationship under the pretext of marriage, despite being well aware of the fact that they were of different religions.
The Court stated that, barring a few exceptions, India is a conservative society that has not yet reached such a level (advanced or lower) of civilization where unmarried girls, regardless of their religion, engage in carnal activities with boys just for the fun of it, unless the same is backed by some future promise/assurance of marriage, and that, to prove her point, a victim must not have to resort to committing suicide as in the present case.
The MP High Court Bench was also of the considered opinion that a boy who enters into a physical relationship with a lass must realise that his actions have consequences and should be prepared to face them, as it is the girl who is always on the receiving end, as she is the one who risks becoming pregnant as well as the social ostracism if the relationship is revealed. You cannot just plead the prosecutrix’s consent and laugh all the way to your house.
While reading consent under section 90 of the Indian Penal Code, the judiciary carved out this offence. In such circumstances, there is no deception about the sexual act itself. This case is also not an example of passive submission. Instead, the sexual act is consenting, but it is ruled non-consensual when the marriage promise is broken.
According to certain feminists, a man’s conviction in a promise to marry case subtly endorses patriarchal marriage and female sexuality norms. Women’s sexual agency is thus grounded in the institution of marriage rather than desire in such cases. Opponent feminists, on the other hand, argue that socially disadvantaged women are frequently enticed into sexual intercourse under the false pretext of marriage and must be provided with a remedy. Because of the socioeconomic background, they claim, women are easy victims of marriage promises.
The case before the Madhya Pradesh High Court examines consent and its intersections with sexuality, inter-religious marriage, and violence. The court’s comments during the bail hearing, on the other hand, differ from the customary procedure in courts.
The Supreme Court considered social conditions such as family objection to be a valid reason to acquit the man in the landmark Deelip Singh v. State of Bihar (2004) judgment. The fault lines were viewed in two ways: whether he had no intention of marrying the lady “since inception” and whether he knew the “consent is provided due to the promise” to marry. While the Supreme Court in Deelip Singh found that the accused’s inability to overcome domestic opposition was a factor in his failure to maintain his marriage promise, it did not find that he intended to do so. The Madhya Pradesh High Court, on the other hand, provides no insight into the context of the accused in the case of Abhishek Chouhan, nor a legal knowledge of his guilty mentality or lack thereof.
The Indian women’s sexuality is portrayed by the High Court as submissive. It undermines consent by defining an ‘Indian woman’ as someone who would never consent to sex outside of marriage. This assumption supports the idea that marriage should always be followed by sex. If there is, it is an anomaly that can only be corrected through post-facto marriage.
Furthermore, the High Court ruled that only a “woman is at risk of becoming pregnant,” implying that the accused must pay the cost of having intercourse. It, too, takes away women’s agency and eliminates their ability to engage with their own subjective world. The court constructs a narrative about docile and victimised “Indian women,” but fails to inquire into what may have prompted the prosecutrix to take her own life. We don’t know anything about the pressures that women face.
We would have known the violence of the so-called consensual relationship and the inconspicuous violence of the familial and social system if the High Court had given the woman a platform to tell her experience.
While the judgement on this case is still awaited, one shall not ignore the fact that provisions of the law meant to safeguard the interests of women are often misused by women. The complainant woman contended before the court in Mohit Nagar vs State & Anr (2017) that she was engaged in consensual sexual intercourse under the pretext of marriage, but the woman was already married to another person, and all of her arguments were false. The court dropped the criminal proceedings against the accused after noting that the woman had already filed other comparable cases. Hence, the role of consent and scrutiny of claims made by the victim in such cases is crucial in the delivery of a fair judgement.
While a murderer damages the physical body of the victim, a rapist degrades and defiles the soul of a vulnerable female, as the Hon’ble Supreme Court of India and State High Courts have observed in a number of rulings. Rape reduces a woman into an animal by shattering the very foundations of her being. A rape victim cannot be considered an accomplice in any way. Rape leaves an indelible mark on the victim’s life. Rape is a crime against a society that infringes on the victim’s human rights. Rape, as the most despised crime, is a devastating blow to a woman’s greatest honour and offends both her esteem and dignity.
The accused made a false promise of marriage with the mala fide intent of deceiving the victim on several occasions, resulting in terrible circumstances for the woman in the society, since many girls are exploited by the fake promise of marriage. These cases are increasing every day because the accused person believes that the law is on their side and that they can easily get away with their crime because the Indian Penal Code, 1860, contains no explicit provision. Therefore, the legislature must establish a specific legal framework to address cases in which the accused acquired consent for sexual intercourse under the false promise of marriage.
Rape has a long-term impact on the victims’ lives. However, in most cases, sexual assault has devastating implications not only for the victim but also for the victim’s family. In a patriarchal society like India, where women have a poor social position, those close to the victim, particularly family members, are also impacted by unfavourable societal reactions. Sexual abuse victims suffer from a variety of physical and psychological issues. The victim and her family members suffer the most pain and shame as a result of rape.
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