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Is Sex On The False Promise Of The Marriage, Rape?

According to a poll conducted by The Hindu group on rape cases in 2014, the share of instances involving the breakdown of the pledge to marry accounted for around 25% of all rape cases. Thus, the question is whether marriage based on a false promise constitutes rape. The law on the point is under Section 375 of the Indian Penal Code, 1860.

What is eccentric to all such cases is the element of consent, and based on such consent, the charge of the rape could be made and not. And the rape on the pretext of the false promise to marriage could be considered as the rape by fraud, and reliance for reading it into the S. 375 of the Act could be placed on the definition of the consent under Section 90 of the Act: as per which if the consent had been given under the misconception of the fact, then such consent could not legally be termed as the consent under the provisions of the Act.

This definition has been read into by the courts into the description secondly under Section 375 of the Act: without her consent. The important question is such that is mutual consent is so important that we forget to think about the self-respect of the women or the guilty intention of the man if so found.

However, permission obtained under the guise of a fraudulent marriage might not be considered rape for the following reasons:
  1. Section 375 is complete in itself
    It is the rule of the interpretation that the statute that the plain interpretation should be given to the provision which is unambiguous, herein the Section 375, and also that the penal provision ought to be construed strictly and nothing could be read into it. The judiciary cannot, on its own, change or vary the language of the statute, therefore giving birth to a new interpretation.

    Under Section 375 there are six descriptions covering all the aspects of the rape, and the common thread within them is the consent or lack thereof. Aside from the first and second descriptions, the rest of the descriptions deal with incidents in which the victim consented. And, under these descriptions, such consent is void if the conditions stated are met.

    Thus, based on the foregoing, it is clear that there is a distinction between the various provisions, and circumstances where there is no consent differ from cases where the consent has been vitiated. The case on the pretext of false marriage might fall under the third description, but not under secondly: without her consent, as that would be tantamount to violating the scheme of the Act.

    The role of the Judiciary is not to deem what the Legislature had said, but to know what the Legislature said it meant. Had it been the legislative intent to include the cases on the pretext of false marriage as rape, it would be mentioned under any description. Thus, it could not be covered under secondly: which says without her consent.
     
  2. Section 90's definition of consent could not be read into Section 375
    Since the consent and its ancillary matters are dealt with by Section 375 of the Act, the definition of consent granted under Section 90 of the General Exceptions could not be applied to Section 375 of the Act. From the thirdly to sixthly are covered the cases wherein the consent could be vitiated, which inter-alia includes the consent that has been given under the fear; but that per se could not deem to mean that such provisions providing for the invalidation of the consent would also include thereunder the consent being vitiated owing to the misconception of the fact. Further, it could be said that the explanation on the consent had been given under the amended Section 375, so the question of traversing beyond the provision does not apply. Since the rule is that any general provision could not override the specific provision of law that deals with the subject.
     
  3. In arguendo, even if the misconception of the fact under Section 90 is read into Section 375 that per se would not include the situation of the rape on the false pretext of the marriage.
    Even if the definition of the consent provided under section 90 of the Act is read into Section 375 thereof, even then the concept of the misconception of fact could not be left open-ended, more so when the issue pertains to the interpretation of the provision pertaining to the heinous crime: Rape. In the foreign jurisdictions, only the deceit that has the effect of coloring the nature or the purpose for which sexual intercourse had been gone under could be considered as rape by fraud, and there is apparently nothing like false promise on marriage amounting to rape: as in the latter does know the nature or purpose for doing such act.

    It has been opined by the Glanville Williams, as hereunder:
    in rape, the issue is the woman's consent to sexual intercourse with this man. If she does not know that the act is one of sexual intercourse, or if she is mistaken as to the identity of the man, then she does not consent, but otherwise, she does�There is, therefore, no need to inflate the grave offense of rape to make it cover sexual deceits in general."[1]

    Thus, in the case of alleged false promise to marry, it would be wrong to deem that the victim did not know or understand the nature or purpose of the act, and distorted herself with the false promise. Indubitably, it might have the effect of motivating the victim, but it would be wrong to say that she did know nature. If the misconception of the word of the fact should be given the restricted meaning, lest there would be any case falling thereunder.
     
  4. The burden of proof beyond doubt could not be made out in such cases
    There could not be a true implementation of the cardinal tenet of criminal jurisprudence that the prosecution bears the burden of proof beyond a reasonable doubt. It is obvious that such acts happen in the private where complex and intimate human relations are involved, the evidence in order to prove the charge for the rape is seldom to be found.

    In the case of Uday Singh Dhaka, it has been held by the Apex Court that:
    21. It, therefore, appears that the consensus of judicial opinion is in favor of the view that the consent given by the Prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code�" .

    The court further opined that:
    26. In view of our findings aforesaid, we do not consider it necessary to consider the question as to whether in a case of rape the misconception of fact must be confined to the circumstances falling under Section 375 fourthly and fifthly, or whether consent given under a misconception of fact contemplated by Section 90 has a wider application so as to include circumstances not enumerated in Section 375 IPC.
     
Conclusion
In the case of Dileep Singh vs. the State of Bihar, the Apex Court decided that the definition of consent under Section 90 of the Act should be read into the second description of Section 375: without her consent. The court did not take into consideration the relevant question that has been left open in the case of Uday Dhaka.

It was just held by the court that:
It finally held that a representation deliberately made by the accused with a view to eliciting the assent of the victim without having the intention or inclination to marry her, will vitiate the consent given.

Rape has a long-term influence on the victims' lives. However, in many circumstances, not only is the victim suffering from the devastating ramifications of sexual abuse, but his or her family life is also suffering.

Albeit as per Article 141 of the Constitution, 1950 the judgment rendered by the Apex Court is the law of the land and there is the principle of Ignorantia Juris non-excusat. But, by the above analysis, the author had tried to put forth the opinion. The reliance for such a basis has been placed on the case of Uday Singh wherein the court thought to leave the question open. Thus, without paying heed to such a decision, the decision rendered in the Dileep Singh (supra) is per incuriam as regards the locus classicus.

End-Notes:
  1. Glanville Williams, Textbook of Criminal Law (Second Edition, Universal Law Publishing) 559
Suggested Articles:
  1. Marital Rape Situational Analysis
  2. Make Marital Rape An Offence: Delhi Court
  3. Whether Sexual Intercourse Promise to Marry is Rape?
  4. Whether Sexual Intercourse Based On Promise To Marry Is Rape?
  5. Consent For Sexual Act Obtained By Making False Promise Of Reemployment Isn't Free Consent: MP HC
  6. Rape-Misconception Of Fact About Promise To Marry Has To Be In Proximity Of Time To The Occurrence: SC
  7. Not A Case Of Forceful Sexual Assault: Delhi HC Grants Anticipatory Bail To Doctor Accused Of Raping Woman On Pretext of False Promise Of Marriage

    Award Winning Article Is Written By: Ms.Anushree Srivastava
    Awarded certificate of Excellence
    Authentication No: DE136457472298-30-1221

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