False promise
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This article is written by Kartik Bohra, from Symbiosis Law School, Hyderabad. In this article, the legal position in India with regards to the offence of rape on the pretext of a false promise of marriage along with the judicial pronouncements has been discussed.

Introduction

The question often comes before the court of law whether sexual intercourse with the women amounts to rape if the consent was obtained by a false promise of marriage within the meaning of Section 375 of Indian Penal Code, 1860. Rape laws in India considered it a crime and punished such defendants. Marriage is considered as a sacred union between two people. It is not merely a physical relationship, it involves emotional as well as the spiritual bonding between couples. In ancient Hindu laws, it is believed that marriage is performed to pursue dharma (duty), artha (possessions) and kama (physical desires). In Hinduism, sexual intercourse or consummation is considered as a ritual which is followed after the marriage ceremony. In this physical relationship, consent plays a very vital role and it is necessary that mutual consent be present at the time of sexual intercourse. However, the person taking consent for sexual intercourse on the pretext of a false promise of marriage would amount to rape and charged under the relevant Section of the Indian Penal Code. Sometimes, ‘men’s rights activist’ claims that these charges framed against the accused should be treated as ‘false rape cases’ as they are designed to prove the guilt of the accused. But various activists believe that these cases should be punished under penal provisions as they are undermining the position of women in the patriarchal society.  

This false promise of marriage for obtaining consent for sexual intercourse is considered as ‘misconception of fact’ within the meaning of Section 90 of Indian Penal Code, 1860. Thus, it is not considered as a valid consent in the eyes of the law and would be charged under Section 375 of the IPC. The second explanation of Section 375 of IPC provides punishment for rape if sexual intercourse is done without victims’ consent. However, Indian Courts have started taking a different approach towards Section 375 and interpreted the term “consent” in a broader way. Various judgments passed by the court have interpreted ‘consent’ which violates certain basic principles of statutory interpretation. In certain cases, courts observed that everytime, a man cannot be charged under Section 375 when he fails to marry a woman despite he made a promise. There is a need for the strict interpretation of statutes to hold an accused guilty under Section 375 of IPC.

However, the law is very clear in this regard that a false promise to marriage amounts to rape and come within the ambit of Section 375. The provisions enshrined under Section 375 of IPC needed to be interpreted in a wider sense to hold a person guilty for rape. 

Nature of consent

The interpretation of the term ‘consent’ plays a very vital role in the conviction of accused in the rape cases. Consent under the provisions of IPC may be implied or expressed, willingly or coerced and obtained by misconception or fraud. Consent may be defined as an act of reason performed with deliberation and balance the good and evil on each side. The provisions of Section 90 of the Indian Penal Code, 1860 states that consent will not amount to a valid consent if it is given by a person under fear of injury, or under a misconception of fact, or if a person who is acting has reason to believe that the consent was obtained under fear or misconception. 

The Indian courts have operated on the assumption that Section 90 IPC is very significant when it comes to the interpretation of Section 375 IPC though the definition of consent was given under the Amendment of 2013. It is noted that Section 90 may be read with Section 375 to hold an accused guilty. Therefore, if a person commits any sexual intercourse on false promise of marriage with the intention to deceive the prosecutrix, it would be considered as ‘without her consent’ within the meaning of the second explanation of Section 375 and the accused should be punishable under Section 376 IPC.

Section 90 of IPC provides every aspect related to the term,’consent’. It is noted that the consent acquired from the prosecutrix by the accused in the pretext of a false promise of marriage. Therefore, the consent is given by the victim under a misconception of fact would amount to rape within the meaning of Section 375 IPC. 

In the case of Kaini Rajan v. State of Kerala (2013), the Supreme Court held that Section 375 of IPC contains provisions of “rape” where the first clause provides that woman is in possession of her senses and capable of giving consent but the action takes place against her will, and the second clause states that the act is done without her consent. The court further observed that the expression without her consent is considered to be an act of reason coupled with deliberation. Though, Section 90 IPC does not define consent but provides ‘what is not consent’. The question that whether there was the consent of the victim was present or not would be ascertained by courts by considering all the relevant facts and circumstances of the case. 

Misconception of fact

The ‘misconception of fact’ within the meaning of Section 90 read with Section 375 provides that when the accused gives false promise of marriage without his intention to marry and the victim believed that the accused has a good faith and gave her consent for sexual intercourse due to the assurance given by the accused. The act is punishable under the provisions of IPC and would amount to rape. 

In the case of Pradeep Kumar v. State of Bihar (2007), it was held by the Supreme Court that the term ‘misconception of fact’ defined under Section 90 of IPC is broad enough to include all cases pertaining to misrepresentation of facts, deceit, fraud etc reference to which consent is given. Section 3 of the Indian Evidence Act, 1872 also provides for intention to be treated as fact. Thus, if the consent of the victim is procured by misrepresentation of facts or fraud then it will be treated as against her will. It is an offence under the provisions of criminal law to obtain consent from a person by fraud and misrepresentation of fact. Therefore, if the accused had sexual intercourse with the victim on false promise of marriage, would amount to rape within the meaning of Section 375 of IPC.

Mens Rea 

The prosecution needs to prove before the court of law beyond a reasonable doubt that the accused never intended to marry her and begin sexual attempts without the intention of marriage with the prosecutrix.

In certain cases, it is seen that the accused had no intention to marry the prosecutrix from the very beginning. However, there can be certain cases where a person who has the best intention to marry the prosecutrix may not be able to fulfil it due to some unavoidable circumstances. Therefore, a promise made with respect to future uncertainty, and due to facts that are not considered from the evidence available to the prosecution, does not always come within the ambit of the misconception of fact in the criminal law. It is observed on a number of occasions that the accused had a “clear intention” not to marry the victim from the very beginning. Therefore, sexual intercourse under total misconception cannot be treated as consent. 

The Calcutta High Court in the case of Jayanti Rani Panda v. State of West Bengal & Anr. (1984), held that in order to invoke misconception of fact under Section 90 of IPC, the fact shown by the prosecution must have direct and immediate relevance. The court further held that if a fully grown-up girl gave her consent to sexual intercourse on the pretext of a false promise of marriage and continues to indulge in such activity on the same belief is considered an act of ‘promiscuity’ on her part. The court held that it is not an act of misconception of fact and Section 90 of IPC cannot be simply invoked in such acts unless the court assures that the accused never intended to marry the prosecutrix from the very beginning. Therefore, the court concludes that it depends upon case to case based on facts and circumstances and the intention of the accused is very prominent in such cases.

Role of the Indian Evidence Act,1872

According to Section 114-A of Indian Evidence Act, 1872, in a case for rape under Section 375 of IPC, where the sexual intercourse by the accused is proved and the question comes before the court of law that whether consent was given by the prosecutrix or not, and she states in her evidence that she did not give consent for the act, then the court shall presume that the act was done without the consent of the victim. This provision is introduced in the Evidence Act to protect women from the mass atrocities in society.  

The description ‘secondly’ states about the offence of rape without the consent of the victim. Therefore, if an accused had sexual intercourse with the victim without her consent will constitute the offence of rape. Thus, if consent is obtained on the pretext of false promise to marry by the accused will fall within the ambit of ‘misconception of fact’ and the consent so obtained shall be vitiated. Such consent will be treated as ‘no consent’ in the eyes of the law and it is the duty of the defendant to prove before the court of law that consent was obtained from the prosecutrix. 

In the State of U.P. v. Naushad (2013), the court held that the accused shall be convicted under Section 375 of IPC as sexual intercourse on false promise to marry would amount to ‘without consent’ within the description ‘secondly’ of Section 375 of IPC. Thus, it is the duty of the defendant to establish the fact that consent was obtained with the bonafide intention and it is not within the meaning of Section 90. The Supreme Court reversed the decision of the High Court and convicted the accused for the offence of rape under Section 376 of the IPC.

The legal position in India

The legal position on ‘sexual intercourse on false promise of marriage is not very clear in India. There are various contradictions present in the current law in India. The Indian judiciary has also given various contradictory judgments in this perspective. However, a strict interpretation of the provisions of Section 375 IPC states that sexual intercourse with a woman without her consent is punishable as rape. Therefore, there is a need for the amendment in the legislation which defines the clear aspect regarding ‘sexual intercourse with the prosecutrix on the pretext of a false promise of marriage’ as, in the present scenario, the law on this matter lacks various provisions for the conviction of the accused in such cases which lead to his acquittal from the charges of rape.

Arguments in favour of the law

Section 375 of IPC provides the general definition of rape within the purview of criminal law. It contains specific provisions regarding the offence of rape that are valuable and relevant in the cases of a false promise of marriage. Various judicial rulings in India have increased the scope for rape prosecutions in promise to marry cases. It is clear under the provisions of the Penal Code that sexual intercourse without the consent of the prosecutrix is a punishable offence and the accused will be charged for committing rape. According to the survey conducted by The Hindu, there were 25% cases where the accused had sexual intercourse on the pretext of false promise to marry and breach of promise to marry.

Section 90 of IPC provides the definition of ‘consent’ in a negative way and states that consent given under the misconception of fact and the person whom the consent is given has acted on that statement of fact, would not be treated as valid consent under the provisions of criminal law. Therefore, it is noted that if the accused had sexual intercourse with the prosecutrix on the false promise of marriage would come under the purview of the misconception of fact within the meaning of Section 90 of IPC. The Indian Courts have pronounced various judgments in the favour of law and observed that Section 90 is relevant for the purpose of interpretation of Section 375, even if this provision was later added in the 2013 amendment.

According to Section 90, the consent of a person can vitiate as long as two conditions are met. Firstly, there must be some connection and correlation between the victim’s misconception of fact and consent; secondly, the defendant must have reason to believe that the consent was thus vitiated under the penal provisions. As long as this fact remains true, the court will take this into consideration and establish that the victim has not given consent for the sexual act committed by the accused. Therefore, the law provides that a false promise of marriage will come within the purview of Section 90 IPC and consent obtained from the victim is vitiated under the misconception of fact. Any sexual act on the pretext of a false promise of marriage would be considered as an absence of consent and therefore constitute as rape within Section 375.

In Deelip Singh v. State of Bihar (2004), the Supreme Court held that consent taken from the prosecutrix would vitiate if it was obtained on the pretext of a false promise of marriage by the accused. The court further observed that there was no consent or the consent obtained was involuntary in the instant case. It was a case of sexual intercourse against the will of the victim that would fall under the ambit of description “secondly” of Section 375 IPC. 

The Supreme Court of India recently affirmed the law and held that “where the promise to marry is false and the intention of the accused at the time of making the promise was not to abide by it but to deceive the victim to obtain her consent for sexual intercourse, there is a misconception of fact within the meaning of Section 90 that vitiates the woman’s consent.”

Arguments against the law

The legal provisions and various judgments pronounced by Indian courts in the favour of the law are erroneous and defeat the very purpose of penal provisions enshrined under the Indian Penal Code, 1860. Therefore, consent obtained from the victim by making a false promise of marriage, would not amount to rape within the meaning of Section 375 and not punishable under the law. 

Various judgments on this issue observed that the breach of promise would not fall under the purview of Section 90 and hence if the accused had sexual intercourse with the prosecutrix on the promise of marriage which was later breached due to some uncertain events, would not be punishable for rape. Therefore, the court was of the view that the false promise of marriage is different from the breach of promise and courts have to interpret this issue in a broader sense to give justice to both the accused and the prosecutrix. It is not always necessary that the accused had sexual intercourse on the false promise of marriage. Thus, there is a need to interpret the case according to the facts and circumstances and establish the mala fide intention of the accused in such cases.

In the case of Hari Majhi v. State of West Bengal (1990) and in Abhoy Pradhan v. State of West Bengal (1999), the Calcutta High Court observed that it is necessary to interpret the term ‘misconception of fact in a strict sense and held that these cases involve only a breach of promise and not false promise to marry. Therefore, it does not fall within the purview of Section 90.

In Honayya v. State of Karnataka (2000), the Karnataka High Court opined that mere ‘breach of promise’ would not come under the ambit of ‘misconception of fact’ defined under Section 90 of IPC. Therefore, the court held that sexual intercourse where the consent was procured on the promise of marriage which was later breached by the accused, would not amount to rape within the meaning of Section 375 IPC. However, the court did not expressly rule false promise to marry not to come within the ambit of ‘misconception of fact’ and laid down the false promise as a fraud. 

It was further held that there is a small category of cases which fall within the purview of rape if the consent of the victim was obtained under the influence of fraud. There is a need to establish the fact that the accused person had misled the victim to have sexual intercourse with him. 

There are four reasons to show that sexual intercourse on the false promise of marriage cannot come within the ambit of Section 375 of IPC:

  • Section 375 is an exhaustive provision under Penal Code: The provisions enshrined under the penal code are very exhaustive and therefore, need a strict interpretation of laws to reach a definite conclusion. The courts have to construe these provisions strictly and no new meaning should be added to the offence. There are six explanations mentioned under Section 375 which provides provision for the offence of rape. Each explanation has its own meaning and is distinct from each other. 

The explanation ‘secondly’ provides for the offence of rape if it has been committed without the consent of the victim. Therefore, this description doesn’t deal with the aspect of the nature of consent and its vitiation rather deal in terms of express and implied consent. Thus, we can say that consent defined under Section 90 of IPC could not be included within the meaning of explanation ‘secondly’ of Section 375.

  • Section 90 of IPC cannot override a specific panel provision: Section 90 IPC is generally used in general exception and cannot override the effects of specific provision enshrined under Penal Code. Therefore, Section 90 cannot be applied to Section 375 where it expressly provides provisions for vitiated consent. Descriptions ‘thirdly’ and ‘fourthly’ specifically talks about the scenarios where consent is deemed to be vitiated and not recognized within the meaning of Section 375. Moreover, the amendment under Section 375 specifically describes the term ‘consent’.
  • The narrow scope of a misconception of fact: it is well defined in law that the consent is vitiated only when the victim is unaware of the act of the accused. In the case of a false promise of marriage, the prosecutrix is well aware of the facts and circumstances of the act. The understanding of the sexual act cannot be distorted simply because of false promise to marry the prosecutrix. There may be a case where the victim gets motivated by such an act but does not change her rational thinking and understanding of the act. 

The term ‘misconception of fact’ should be interpreted in a restricted sense. Therefore, the said act does not come under the purview of a misconception of fact defined under Section 90 of IPC.

  • Beyond a reasonable doubt: the inclusion of sexual intercourse on false promise to marry under the offence of rape is erroneous and quite impossible to prove it beyond a reasonable doubt before the court of law. It is very complex and difficult to adjudge the real intentions of the accused in the context of Section 375. Also, the presumptions under the Indian Evidence Act is also misappropriated in cases of false promise to marry. Therefore, it raises questions about the constitutional validity of the statue. 

In the case of 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 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. Thus, the court restricted the meaning of Section 90 and held that sexual intercourse on a promise to marry would not fall under the ambit of Section 375. The court refused to give a straitjacket formula for determining the issue of whether the consent given by the victim to sexual intercourse is voluntary or whether it is given under a misconception of fact. 

It is believed that where a false promise of marriage by the accused caused harm to the victim’s “body, mind, property, and reputation”, the same would be punishable under Section 415 of the Indian Penal Code for the offence of cheating. Such an act might be actionable under civil laws.

The Orissa High Court in the case of G. Achyut Kumar v. State of Odisha (2020) 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. Therefore, an extension of Section 90 to constitute the offence of rape is not valid in the eyes of the law and it deserves a serious relook. 

Judicial pronouncements

The Indian Courts have been challenged several times with the issue that ‘ sexual intercourse on the pretext of a false marriage is considered as rape or not?’ Or ‘whether the consent given by a woman will be considered as valid consent or not in the eyes of law?’ There are various contradictions involved in this issue as various courts opined their different views on it.

In the case of Saleha Khatoon v. State of Bihar and Ors.(1988), the Patna High Court observed and held that a consent obtained from a woman under the misconception of fact or by Fraud cannot be termed as valid consent in the eyes of law. In this case, consent was obtained from the prosecutrix on the basis of the false promise of marriage with the intention to deceive her and to have sexual intercourse with her. The court observed that such consent given by prosecutrix comes within the purview of Section 90 IPC read with Section 375 of IPC. The court further highlighted the significance of term ‘consent’ in rape laws and opined that consent procured from a woman on the false promise of marriage would amount to rape within the meaning of Section 375.

In Deepak Gulati v. State of Haryana (2013), the apex 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 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. 

Therefore, it is evident if the accused had sexual intercourse with the prosecutrix with the intention to deceive her or not intended to marry her then he must be convicted under Section 90 IPC read with Section 375 IPC which amounts to rape.

In Yedla Srinivasa Rao v. the State of A.P. (2006), the Apex court observed that the intention of the accused is taken into consideration in such cases. In this case, the intention of the accused, from the very beginning was mala fide, where he had sexual intercourse on false promise to marry the prosecutrix. The court held that this kind of consent is not valid in the penal provisions as the victim was under the misconception of the fact that the accused would marry her and therefore, on this belief she had sexual intercourse with him. This kind of consent taken from the prosecutrix with the clear intention from the very beginning not to fulfil the promise but to have sexual intercourse with her in lieu of it, will not be considered as valid consent in the eyes of law and the accused must be convicted under Section 375 of IPC for rape.

Thus, in the instant case, the Supreme Court held the accused guilty of rape as he obtained the consent of the victim for sexual intercourse on the false promise of marriage.  

In Anurag Soni v. State of Chattisgarh (2019), the Supreme Court opined that if an accused from the very beginning not intended to marry the victim but gave false promise of marriage to and in lieu of such promise that the accused will marry her, she gave her consent for sexual intercourse with the accused, then such consent would not amount to valid consent and therefore comes within the ambit of the misconception of fact under Section 90 of IPC. The court observed that sexual intercourse on the false promise of marriage is also an offence under Section 417 of IPC which provides punishment for cheating. Thus, such consent shall not excuse the accused from the charges for the offence of rape under Section 375 of IPC.

In Prashant Bharti v. Delhi (2013), the 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 worldly-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.

Conclusion

Rape is considered as the most physically and morally reprehensible crime in a society and has a long life effect on the mind of victims. It is noted that the family of the victim also suffers due to this heinous act in society. The victim has to go through a wide array of emotion and physical suffering. “Rape reduces a woman to an animal, as it shakes the very core of her life.” in a case, where the accused had sexual intercourse with the prosecutrix on the pretext of false promise to marry is an offence under the penal provisions. 

It can be seen on various occasions that the accused made a false promise of marriage with the mala fide intention to deceive the victim which has caused reprehensible situations for women in the society as many girls are being exploited by the false promise of marriage. These cases are increasing day by day as the accused person believes that the law is on their side and can easily get away with their crime as there is no specific provision enshrined under Indian Penal Code, 1860. Therefore, it is necessary for the legislature to provide a specific legal framework to deal with the cases where the accused obtained consent for sexual intercourse on the false promise of marriage.

Hence, the court should take this into consideration while deciding the matter of sexual intercourse on false promise to marry. The court must not give license to those who are trying to exploit the innocent girls and have sexual intercourse with them on the pretext of a false promise of marriage. Thus, the accused person should be punished under Section 376 of IPC for committing rape.  

References


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