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Whether Sexual Intercourse Promise to Marry is Rape?

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.

The word Marriage might have acquired a very negative aura around it in certain parts of the world now, because there is a sense of juvenile freedom. Young people in some societies perceive marriage as a bad thing. When you are young, you are against it, because your physical body is in a certain mode. Marriage looks like a bondage and a chain. You want to do things in a certain way. But slowly, when the body weakens, once again you wish there was someone with you in a committed way.

Hindu marriage harmonizes two individuals (mostly male and female) for ultimate eternity, so that they can pursue dharma (responsibility/duties), arth (meaning), and kama. It is a union of two individuals as spouses, and is recognized by liveable continuity. In Hinduism, marriage is not followed by traditional rituals for consummation. In fact, marriage is considered complete or valid even without consummation because the marriage is between two souls and it is beyond the body. It also joins two families together. Favourable colours are normally red and gold for this occasion.

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 every time, 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. 

Two consenting adults establishing a physical relationship, is not crime-Unless there is an affirmative, conscious and voluntary consent to engage in sex, same would constitute offence-Inducement to have physical relationship by promising marriage must have clear nexus with moment promise of marriage cannot be held out as inducement for engaging in sex over protracted and indefinite period of time.

Promise to marry may induce party to agree to establish sexual inducement in given moment may elicit consent, even though concerned party would constitute offence. Continuing with intimate relationship, which induced and involuntary, merely on assertion that other party has expressed its intention to get married.

The Consent for sexual intercourse obtained by a person by giving false promise of marriage would not excuse him for rape charges U/S 375 IPC 1860. Whenever the accused gives promise to the victim to marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the Indian Penal Code, and, in such case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 of the Indian Penal Code, and can be convicted for the offence under Section 376 of the IPC.

Rape or Consensual Sex:

Intercourse under promise to marry constitutes rape only if from initial stage accused had no intention to keep promise.

An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.

Section 375 and Section 90 of the Indian Penal Code, 1860 and on the consent/consensual sex are required to be referred to and considered:

Section 375 in The Indian Penal Code

  1. 375. Rape: A man is said to commit "rape" if he:
    1. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
    2. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
    3. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
    4. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
      1. Against her will
      2. Without her consent.
      3. 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.
      4. 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.
      5. 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.
      6. With or without her consent, when she is under eighteen years of age.
      7. When she is unable to communicate consent.

Explanation 1:
For the purposes of this section, "vagina" shall also include labia majora.

Explanation 2:
Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1:
A medical procedure or intervention shall not constitute rape.

Exception 2:
Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.]
 

Section 90 in The Indian Penal Code

90. Consent known to be given under fear or misconception:
A consent is not such a 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; or Consent of insane person.: if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.: unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
 
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 State Vs. Sandeep, 264(2019) DLT 428, the Hon'ble Delhi High Court explained the essentials and parameters of the offence of rape in Para 8,9,10 and 14 as under;
 8. Ms P had deposed as PW2. Her parents (Raj Kumari and Brahm Dev) deposed as PW3 and PW4 respectively. One Sh. Sohan Pal, a friend of the respondent, had deposed as a defence witness (DW-1). He had testified that he knew the accused, as well as Ms P, and both of them had a love affair.

He claimed that the accused had introduced Ms P to him in 2015. At the material time, she was undergoing a beautician's course in Narela. He had testified that the accused wanted to marry Ms P, but Ms P's father was opposed to the said liaison and therefore, their marriage could not be solemnised.

9. The fact that the respondent had established a physical relationship with Ms P cannot be disputed. Indisputably, Ms P had checked into a hotel with the respondent at about 10:00 p.m. on 08.09.2016 and had checked out of the said hotel on 09.09.2016 at 08:00 a.m. Clearly, the respondent and Ms P had done so for physical intimacy. The Trial Court had rightly observed that the only question to be considered was whether Ms P had consented for the physical relationship under a false promise of marriage.

10. After evaluating the evidence, the Trial Court had concluded that Ms. P had established the physical relationship with the accused on account of love and affection and not on being induced by a promise of marriage.

14. In view of the above, the Trial Court concluded that the "accused cannot be held guilty for not marrying the prosecutrix because he and his family members were ready for the marriage but the parents of the prosecutrix did not want that their daughter should marry the accused". Given the testimony of the witnesses, the conclusion that the accused and Ms P did not marry on account of the opposition from the family of the prosecutrix is certainly a plausible view.

The only reservation that this Court has to the above conclusion of the trial court is the implicit assumption that the accused was alleged to be guilty of not marrying Ms P. The accused was not on trial for not marrying Ms. P; but on an allegation of committing the offence of rape.

Inducement to have a physical relationship by promising marriage must have a clear nexus with the moment promise of marriage cannot be held out as an inducement for engaging in sex over a protracted and indefinite period of time. In certain cases, a promise to marry may induce a party to agree to establish sexual relations, even though such party does not desire to consent to the same. Such inducement in a given moment may elicit consent, even though the concerned party may want to say no.

Such false inducement given with the intention to exploit the other party would constitute an offence. However, it is difficult to accept that continuing with an intimate relationship, which also involves engaging in sexual activity, over a significant period of time, is induced and involuntary, merely on the assertion that the other party has expressed its intention to get married.

In the case of Deepak Gulati Vs State of Haryana (2013) 7 SCC 675, the Hon'ble Supreme Court of observed in Para 14,15,21 and last 24 as under:
14. The undisputed facts of the case are as under:
  1. The prosecutrix was 19 years of age at the time of the said incident.
  2. She had inclination towards the appellant, and had willingly gone with him to Kurukshetra to get married.
  3. The appellant had been giving her assurance of the fact that he would get married to her.
  4. The physical relationship between the parties had clearly developed with the consent of the prosecutrix, as there was neither a case of any resistance, nor had she raised any complaint anywhere at any time despite the fact that she had been living with the appellant for several days, and had travelled with him from one place to another.
  5. Even after leaving the hostel of Kurukshetra University, she agreed and proceeded to go with the appellant to Ambala, to get married to him there.

15. Section 114-A of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Act 1872') provides, that if the prosecutrix deposes that she did not give her consent, then the Court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the Act 1872 be pressed into service. Hence, the sole question involved herein is whether her consent had been obtained on the false promise of marriage.

Thus, the provisions of Sections 417, 375 and 376 IPC have to be taken into consideration, along with the provisions of Section 90 of the Act 1872. Section 90 of the Act 1872 provides, that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375 IPC are concerned, and thus, such a physical relationship would tantamount to committing rape.

21. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e., at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances.

The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term misconception of fact, the fact must have an immediate relevance" Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.

24. If the prosecutrix was in fact going to Ambala to marry the appellant, as stands fully established from the evidence on record, we fail to understand on what basis the allegation of "false promise of marriage" has been raised by the prosecutrix. We also fail to comprehend the circumstances in which a charge of deceit/rape can be levelled against the appellant, in light of the afore-mentioned fact situation.

In the case of Ananthakrishnan vs State of Kerala the Hon'ble Kerala High Court explained the essentials and parameters in Para 4,5 and 8 as under;

4. The learned counsel appearing for the applicant would contend that there is no truth in the allegations. In order to show his bona fides that the applicant is even now prepared to marry the victim, he filed an application to implead the de facto complainant as additional 3rd respondent. The said application was allowed and the de facto complainant has appeared through counsel.

5. The learned counsel appearing for the additional 3 rd. respondent submitted that she has given up her desire to marry the applicant. According to the learned counsel, the applicant was in possession of certain photographs which were circulated by him through WhatsApp.

8. It is evident from the materials that the applicant had always wanted to marry the victim. It does not reveal that he had a mala fide motive. Even in the FI Statement, the victim has stated that the applicant had approached her parents and had asked for her hand in marriage.

Before this Court, he has reiterated his desire to live with the victim as husband and wife. As has been held by the Apex Court, these cases are to be treated differently. The acknowledged consensual physical relationship between two adults would not constitute an offence under Section 376 of the IPC. Having considered all the aspects, I am of the view that the applicant has made out a case for anticipatory bail.

In the result, this application is allowed. The applicant shall appear before the investigation officer within ten days from today and shall undergo interrogation. Thereafter, if he is proposed to be arrested, he shall be released on bail on his executing a bond for a sum of Rs.40,000/- (Rupees Forty thousand only) with two solvent sureties each for the like sum.

The above order shall be subject to the following conditions:
  1. The applicant shall co-operate with the investigation and they shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m., for two months or till final report is filed, whichever is earlier. He shall make himself available for any medical test that he may need to be subjected to.
  2. He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/ her from disclosing such facts to the court or to any police officer, nor shall he tamper with the evidence. He shall not contact the victim or her family members.
  3. He shall not commit any similar offence while on bail.


20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception.

There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the Accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape.

There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the Accused and not solely on account of the misconception created by Accused, or where an Accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do.

Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence Under Section 376 of the Indian Penal Code."

In the case of State of U.P. Vs. Naushad, (2013) 16 SCC 651, in the similar facts and circumstances of the case, the Hon'ble Supreme Court reversed the acquittal by the High Court and convicted the accused for the offence under Section 376 of the IPC observing as under:
17. Section 376 prescribes the punishment for the offence of rape. Section 375 IPC defines the offence of rape, and enumerates six descriptions of the offence. The description secondly speaks of rape without her consent. Thus, sexual intercourse by a man with a woman without her consent will constitute the offence rape.

We have to examine as to weather in the present case, the accused is guilty of the act of sexual intercourse with the prosecutrix against her consent. The prosecutrix in this case has deposed on record that the accused promise marriage with her and had sexual intercourse with her on this pretext and when she got pregnant, his family refused to marry him with her on the ground that she is of bad character.

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.

Also Read:
  1. Whether Sexual Intercourse Based On Promise To Marry Is Rape?

Written By: Vishal Jarodia, Semester 7th, FIMT (GGSIPU)
Email: [email protected]

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