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Sonu @ Subhash Kumar vs. the State of Uttar Pradesh : concept of consent under Section 375 of IPC

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This article has been written by Manya Dudeja, from the University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University. It makes an effort to understand the often neglected, though vital term, “consent” when falsely obtained by promising the victim to marry and later denying the same.

Introduction

The word “consent” has often remained the bone of contention in cases of rape and sexual assault. Is an explicit “yes” important to prove consent? Or can consent be implied as well? Would consent obtained through misrepresenting or deceiving the victim amount to valid consent? Is rape by fraud any less than rape by force?
In this article, we will be understanding one such case to find out if a false promise to marry would amount to rape. Recent years have seen an increase in such cases and that’s what makes it important to address this important question of law that plagues the lives of many young women and girls.

Consent under Section 375 of the Indian Penal Code, 1860

Provisions under Section 375

Section 375 of the Indian Penal Code, 1860 lays down the circumstances under which a man is said to commit the crime of rape. It provides six such situations where sexual intercourse between a man and a woman would amount to rape. Let us first have a look at these provisions before dealing with the specific situation of rape by a false promise to marry:

  1. Sexual intercourse against the woman’s will. 
  2. Without obtaining the woman’s consent.
  3. By obtaining consent, in cases where such consent is obtained by threatening her with hurt or creating a fear of death with respect to her or someone’s life she is interested in.
  4. With the woman’s consent when she believes the man to be her lawful husband to whom she believes to be lawfully married and such man knows that he is not her husband.
  5. When consent is obtained but the woman is under a situation of intoxication or at the moment she is of unsound mind or when the man has personally administered or has done so through someone else, a stupefying substance or unwholesome substance, because of which the woman is incapable or unable to understand the nature and consequences of the act to which she has consented.
  6. When the consent of the party is obtained, but she is under sixteen years of age, such a girl is not capable of consenting to the act and hence her consent is considered no consent.

Exception: Sexual intercourse by the man with his wife, if the wife is not less than fifteen years of age, is not considered rape. Marital rape is not illegal and criminalized in India.

According to the nature of the offense or its absence and depending on the way consent is obtained or is not obtained, rape can be divided into:

Rape by force

Here, consent has been expressly denied by the victim or has been obtained under coercion or duress. It also includes situations where the victim is physically or mentally incapable of giving consent.

Statutory Rape

Here, the victim due to her age is incapable of giving consent to the act. 

Rape by Fraud

Here, the consent of the victim is obtained by the use of deceit. Sexual intercourse by falsely promising the victim to marry her has been considered by extension a part of rape by fraud.

Section 376 of the IPC prescribes punishments for rape depending on the degree of brutality and the age of the victim.

Section 90 of the Indian Penal Code

Section 90 of the IPC talks about a situation where consent is obtained due to fear or because of misconception. Such consent is no consent, where the consent is given due to fear of injury to oneself or due to misconception of a fact and where the person committing the act is aware or has enough reason to believe that the consent given as a consequence of such fear or misconception. The section also covers consent by reason of intoxication or unsoundness of mind, both of which are invalid as the person in such a state is incapable of understanding the consequences of the act. It also includes consent given by a child less than twelve years of age. Consent obtained under all these conditions is not valid consent.

Sonu @ Subhash Kumar vs. State of Uttar Pradesh

Facts of the case

In the present case of Sonu @ Subhash Kumar vs. State of Uttar Pradesh, the accused promised the victim to marry her and on this pretext obtained her consent for a physical relationship. The couple was in a love relationship for one and a half years. It has been alleged that Sonu called the prosecutrix and asked her to visit Jhansi, where they can perform a court marriage. Relying on this, the respondent went to Jhansi, where the appellant’s father told her to make some money and run away as Sonu was not willing to marry her. She was also assaulted by his mother and sister. He physically exploited and manipulated her for one and a half years by assuring her to be her future husband. 

The counsel for the applicant or the accused pleading for quashing of the charge sheet contested that the girl was a major and entered into sexual intercourse with the accused of her own free will. In support of the argument, the counsel cited the judgment in the case of Pramod Suryabhan Pawar vs. the State of Maharashtra. The accused also contended that the prosecutrix had the knowledge that the accused’s marriage was fixed with another girl, named, Priyanka Soni. Despite this, both the prosecutrix and her family members continued to put pressure on the accused to marry the prosecutrix.

Issue at hand

The issue we need to address through this case is whether sexual intercourse by falsely promising the woman to marry her amounts to rape. The courts have pronounced conflicting judgments on this principle of law.

Legal position

Concerning Section 375 of the IPC, it is essential that there is a reasoned deliberation on the act of sexual intercourse between the parties. In order to prove that the consent which was obtained was vitiated and was a misconception of fact under Section 90 of the IPC, two conditions must be satisfied:

The promise should be false since the beginning

When the promise to marry was made, it should have been devoid of any intention of complying with it and it should be mala fide i.e. in bad faith. It should have been a false promise to marry.

Consent must be an immediate effect of the false promise

The false promise made should be the immediate reason following which the prosecutrix consented to the act.

The Supreme Court made a distinction between a ‘ false promise’ and a ‘breach of promise’ and laid down that not every failed promise to marry amounts to rape. The intention of the person making such a promise would be taken into consideration.

Judgments by Indian courts with respect to sexual intercourse on false promise to marry

The courts in India have pronounced various judgments on this issue and there has often been conflict between these various judgments. 

The Supreme Court in its judgment in Anurag Soni vs. State of Chhattisgarh, 2019, attempted to create a distinction between a promise which is false ab initio i.e. from the very beginning, and an unfulfilled promise. It can therefore be understood that if a man has sexual intercourse with a woman on a promise to marry her in the future and such a promise is not mala fide and is made to fulfill it, but later due to any reason is not fulfilled, this would not amount to rape. On the other hand, a promise made with no intention to marry and only to deceive would amount to rape.

Some other judgments are:

False promise to marry does not amount to rape

In the case of Jayanti Rani Panda vs. State of West Bengal and Ors, 1984, it was held by the Calcutta High Court that if a major girl consents to the act of sexual intercourse on the promise of marriage, it cannot be considered rape and an act induced due to misconception of facts.

In another case of Arak Sk. vs. State of West Bengal, the man abandoned the woman when she became pregnant, even though he had promised to marry her, the Calcutta High Court held that even though the man’s conduct was reprehensible, it cannot be grounds to punish him under Section 376 of IPC.

Proponents on this side feel that misconception of fact should not be left open-ended and undefined as it is an essential ingredient of rape. Also, they feel that terming sexual intercourse on the false promise of marriage is very ambiguous and cannot fulfill the test of being beyond a reasonable doubt. It is difficult to understand the real intention of the offender in such cases.

False promise to marry amounts to rape

In the case of Saleha Khatoon vs. State Of Bihar And Anr, the Patna High Court held a false promise to marry as rape. The accused was a married man and also had children, he was a family man and allured the victim on the false promise to marry her. 

Conclusion

Well, the answer must have been clear by now. Consent for sexual intercourse obtained based on a false promise to marry would amount to rape. A “yes” would not fall under the purview of Section 375 of the IPC and would not mean consent if the same was vitiated and based on a misconception of fact. Marriage in India has meant more than a mere physical relationship between two people, it implies a sacred union and hence, such cases where false promises to marry are made to physically assault the woman and exploit her undermines the sanctity of the institution of marriage and hence should be rightly punished under the rape laws of the country.

Rape is a heinous crime and can have a long-standing physical and mental impact on the woman. Shielding it under the lie on misconception also amounts to cheating and cannot be used as a free pass to avoid punishment. Although, this was not the case always. Rape laws in India have seen years of evolution through amendments and corrections with important lessons learned through shocking and painful cases.

References


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