This article is authored by Akash Krishnan, a student from ICFAI Law School, Hyderabad. It discusses in detail the scenario regarding sexual intercourse based on a false promise to marry in light of Section 90, Section 275 and Section 376 of the Indian Penal Code. 

Introduction

The word “rape” is derived from the Latin term “rapio” which means to “seize”. In other words, rape can be defined as the ravishment of a woman without her consent, by force, fear or fraud against her will. Rape is a violation of the violence of the private parts of a woman, an outrage by all means. It is considered the most serious crime as it causes enormous emotional and physical harm that can last throughout the victim’s lifetime.

Marriage is considered as a legally recognized union of two individuals as partners which gives them a right to perform their duties and also satisfy their physical desires. Among Hindus, marriage is followed by some traditional rituals for consummation. Therefore, marriage is the beginning of a new family and is also a lifelong commitment among both individuals.

In some cases, it was seen that sexual intercourse has taken place between the individuals before the marriage based on the false promise made by the boy to the girl that he will marry her in the future just to obtain her consent to satisfy his lust. The girls generally give consent for the same based on a promise made to them as they think that in the end they will not get cheated, but if the boy does not fulfil his promise then in such a situation the sexual intercourse will be considered as rape because the consent was obtained by a way of fraud, and it is also possible that she may not have consented for the same if he would not have promised to marry. 

In India earlier it was considered that the consent for sexual intercourse obtained by giving a false promise of marriage would not excuse the boy from the charges of rape. It was believed that whenever the accused gives promise to the victim to marry her, he never had any intention to marry and the consent given by the victim will be considered as consent obtained on the misconception of the fact as per Section 90 of Indian Penal Code, 1860 and it will also be considered that he had committed rape on her as per the Section 375 of Indian Penal Code. Therefore, he can be convicted for the offence under Section 376 of the Indian Penal Code.

Sexual intercourse on false promise to marry 

Section 375 of IPC

When the cases started increasing where a known person obtained consent for sexual intercourse from the victim based on false promises to marry, it became very essential to control such situations. So, it was laid down that if a boy obtains consent based on a false promise to marry, then he would not be excused from the charges of rape. In such a case, it would be considered that he had committed rape on her and will be charged under Section 375 of the Indian Penal Code. The punishment would be given to him according to Section 376 of the Indian Penal Code.

According to Section 375 of the Indian Penal Code, a man is said to commit rape if he penetrates, inserts manipulate and applies his mouth to the vagina, anus, urethra of a woman or make her do so with him or any other person under the circumstances falling under any of the following descriptions. Firstly, against her will. Secondly, without her consent. Thirdly, when her consent is obtained by putting her in fear of death or hurt of the person in which she is interested. Fourthly, when she gives consent believing that the man is her lawful husband. Fifthly, when her consent was obtained at that time, she was not able to understand the nature and consequences of the act. Sixthly, when consent was obtained, she was under eighteen years of age. Last but not least when she was not able to communicate the consent.

Hence, under all these circumstances, the accused will be held guilty for the offence of committing rape and the punishment will be provided according to Section 376 of the Indian Penal Code which lays down that the person committing rape shall be given rigorous imprisonment for a term which may not be less than ten years, but which may extend to imprisonment for life and shall also be liable to fine.

However, it has also been mentioned under this Section that sexual intercourse based on a promise to marry will be considered as rape only if from the initial stage the accused had no intention to fulfil that promise. Therefore, an accused can be convicted only if the court reaches the conclusion that the accused had mala fide intention and also had clandestine motives.

Section 90 of IPC

The sexual intercourse based on false promise to marry will fall under Section 90 of the Indian Penal Code only when the consent of the prosecutrix has been obtained by putting her in fear of injury or under a misconception of fact or at the time when she was not able to understand the nature and consequences of her actions. 

One case where Section 90 has been applied was State of Uttar Pradesh v Naushad (2013). In this case, the accused Naushad was the son of the paternal uncle of the prosecutrix- Shabana’s father who is the informant. The informant complained that Naushad often used to visit his house and enticed her daughter to have sexual intercourse with him based on a promise that he will marry her. The informant came to know about this when Shabana told her mother that Naushad cheated on her and she had gotten pregnant. The issue that arises under this case was whether Naushad can be held guilty for committing the offence of rape or not. The Court held Naushad guilty for the offence of rape under Section 375 of the Indian Penal Code and was also sentenced to life imprisonment with a fine of ₹10,000 under Section 376 of the Indian Penal Code.

Another case was Anurag Soni v State of Chhattisgarh (2019). In this case, a girl studying Pharmacy knowing that the appellant’s marriage has been fixed with some other lady whose name was Priyanka Soni, gave him the consent to make physical relations with her only when he promised her that he would marry her. Therefore, the Court held that from the facts it can be concluded that from the beginning the accused had no intention to marry the prosecutrix and he made a false promise to her due to which she gave consent for making physical relations with her. So, as her consent was based on the misconception of the fact under Section 90, her consent will be considered as no consent. Hence, the accused was held guilty for the offence of rape under Section 375 of IPC and the punishment was given to him under Section 376 of IPC.

Also, in Yedla Srinivasa Rao v State of A.P (2006) Section 90 of IPC was applied. In this case, the accused used to come daily to the prosecutrix sister’s house and ask her for sexual favour from her. He refused her to participate in such activities with him, but still, he used to persist and persuade her. She resisted for about 3 months. One day he again came to her sister’s house, closed the doors of the room and had sexual intercourse forcibly, without her consent as well as against her will. When she asked why he spoiled her life, he answered that he would marry her. Hence. Based on this assurance the process of sexual intercourse continued among them and he also kept giving her assurance that he would marry her.

One day she got pregnant and informed the accused about her pregnancy. He gave her some tablets to abort the child, but the tablets did not work. In the third month of pregnancy when she again asked him to marry her, he answered that her parents were not agreeing for the same. She deposed that she would not have promised to her, then she would not have given consent for the sexual intercourse.

The Court after taking into consideration all the aforesaid facts held that the consent was given under the misconception of the fact that the accused will marry her. Therefore, this consent will be considered as no consent and hence, the accused would be held guilty under Section 375 of IPC and the punishment was granted to him under Section 376 of IPC.

Pramod Suryabhan Pawar v. State of Maharashtra

In Pramod Suryabhan Pawar v State of Maharashtra (2019), Justice Y.V. Chandrachud quashed the FIR that had been filed by the complainant who was an Assistant Commissioner of Sales Tax against the accused who was a Deputy Commandant in the CRPF. In this case, the complainant knew the accused since 1998. In this case, she alleged that in 2008 the accused established a sexual relationship with her on the promise of marriage. In 2014, he started raising concerns about their marriage on the grounds of her caste, but they both remained in the relationship. This relationship continued as they both used to visit each other’s house on various occasions and stayed together for days. In 2016 she filed the FIR against him when he told her about his engagement with another woman.  

The Court held that in every case where a man fails to marry a woman despite a promise made to her, cannot be held guilty for committing the offence of rape. He can only be held guilty if it is proved that the promise to marry was given with no intention to honour it and also that was the only reason due to which the woman agreed to have a sexual relationship.

After this judgment, a question arises that when the consent that has been obtained based on a false promise to marry can be a good defence for the offence of rape or not?

To answer this question the Court said that there is a clear distinction between rape and consensual sex, so, it is very essential to carefully examine in every case that whether the accused wanted to marry the complainant or he had mala fide motives at the time of making a false promise to satisfy his lust. If he had mala fide intentions at the time of making the promise and obtains the consent of the girl by deceiving her and she also consents for the same, then in such case her consent will not be considered as the consent obtained by the misconception of fact under Section 90 of Indian Penal Code. The court is of the view that consent is given to a person for making a sexual relationship with whom the girl is deeply in love only based on the false promise that he would marry her later cannot be said that consent was given by the misconception of fact. This is because it was considered that girl who is fully aware of the nature and consequences of the sexual act, gives consent for the same based on a promise to marry and continue her relationship for a long period, then in such cases it becomes really difficult to determine whether the reason behind the giving of consent was only the promise made by the boy and not a mutual desire to be together.  

Therefore, it is very essential to differentiate between a false promise and a breach of promise. False promise relates to a promise which the accused had no intention to fulfil from the beginning, whereas a breach of promise may happen due to many factors. Such as if a boy fell in love with someone, he might get involved with another partner, he might be compelled by his family to marry someone else, etc. this doesn’t mean that the promise was false from the beginning. So, the determining factor is only the intention of the accused. However, the determining factor of the consent, whether it was obtained voluntarily or involuntarily, will depend on the facts of each case. The court must consider the evidence and the circumstances in every case before reaching a conclusion, but if the court finds that the prosecutrix was also equally keen, then, in that case, the offence would be condoned.

Other judicial pronouncements

In Prashant Bharti v. Delhi (2013), the Supreme Court observed that the age of the victim should be taken into consideration to evaluate the issue of consent and to know an indication of how wordly-wise she is, and to what degree she is judged to given her consent based on the belief that the accused will execute his promise of marriage.

In Deepak Gulati v. State of Haryana (2013), the Supreme Court held that an accused can be convicted for the offence of rape under the penal provisions only if there is evidence to show that ‘the intention of the accused was mala fide and that he has clandestine motives.’ The Court further observed that the defendant should have adequate evidence to show that he had no intention to marry the victim in the first place. Section 90 of the IPC cannot be invoked in such a situation, to fasten the criminal liability on the accused and to pardon the act of the victim in entirety unless the court is assured of the fact that the accused never intended to marry the victim from the very beginning.

In G. Achyut Kumar v. State of Odisha (2020) the Orissa High Court held that if a person engages in sex on a false promise of marriage than it does not constitutes rape within the meaning of Section 375 of IPC. The Court observed that the law specifically provides the provisions where ‘consent’ amounts to ‘no consent’ in terms of Section 375 of IPC and ‘consent on false promise to marry’ is not included within the meaning of Section 375.

In Uday v. State of Karnataka (2003), the Supreme Court observed that the consent given by the victim to sexual intercourse with a person whom she is deeply in love on a promise to marry her in future, cannot be said to be a misconception of fact under Section 90 of IPC and hence, the accused will not be convicted for rape within the meaning of Section 375.

Conclusion

Marriage is considered a sacred institution in our traditional bound society and the girls are conditioned into an unconditional surrender of self to their husbands. Even Indian laws don’t acknowledge non-consensual sex within the marriage as rape. Rape has an enduring effect on the lives of the victims as they suffer physically as well as psychological harm as a consequence of sexual violence. The offence of rape causes the greatest distress and humiliation to the victim and also to its family members.

Since the state must protect the life of every citizen, so before convicting any person for the commission of the crime, the facts of each case have to be determined very carefully and also the evidence and the surrounding circumstances have to be taken care of before passing any judgement or taking any decision. Therefore, the cases involving a false promise to marry the intention of the accused must be examined carefully, because any wrong decision or any mistake can cause injustice to the accused.

References

1. https://www.deccanherald.com/national/sex-with-woman-on-false-promise-of-marriage-is-rape-allahabad-high-court-1016483.html#:~:text=sexual%20intercourse%20with%20the%20victim,provisions%2C”%20the%20court%20said. 
2. https://timesofindia.indiatimes.com/india/specific-law-needed-on-cases-of-sex-on-false-promise-of-marriage-hc/articleshow/85022129.cms 
3. https://blog.ipleaders.in/sexual-intercourse-pretext-false-promise-marriage-amounts-rape/ 

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