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Consent given for sexual intercourse on the false promise of marriage amounts to Rape?

"A woman's body is not a man's plaything"-MP High Court[1]

Introduction
In an Orthodox Patriarchal Society, one of the most underprivileged sections is that of Women and an exhaustive policy framework for the upliftment of women is the need of the hour. While working on this, a balance between the dominant gender and the subservient genders is to be kept in society. It should be readily observed and acknowledged that the weight of any of the genders is not overpowered to cause difficulty and misery to others. In the present scenario, it must be noted that while balancing the weighing scale, Men should not be pushed down, instead Women should be lifted.

When we mention Indian Laws in this regard it can be observed that certain Indian Laws are made in a manner to lift the underprivileged sections of the society. Law against Rape is one of the crucial subject matter that protects offenses against the human body in India. The said rule finds its mention in Section 375-376 of IPC.

The said section is legislated solely for offenses against the body of women as it defines Rape as sexual intercourse committed by Man over a Woman. The said section exclusively defines the offense under various situations, but it does not include several other possibilities to constitute the offense including marital rape and the situation where consent is being obtained by the false promise of marriage.

False Promise of Marriage

The false promise of marriage is one of the practices that not only affects a woman emotionally and psychologically but also inflicts their physical being as it is coupled with having sexual intercourse with the women on account of such promise of marriage. The woman's consent is based on a misconception of fact i.e the promise to marry her, which could be termed as an absence of consent. Thus, there is a concern about whether the consent so obtained by such false promises be considered as valid consent or be termed as "Rape".

Section 375, IPC, while enlisting the circumstances falling under the description of rape lays down seven such situations. The said circumstances include vitiated consent that is considered for rape. The mention of certain sections about the present topic is imperative that includes 375 and 90 of IPC.

Consent definition as per Section 375

Section 375 defines rape and lays down seven grounds by which even if consent is being taken, it would be considered as "no consent."
  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, because consent was given under misconception of fact or fear of injury and if the person doing the act knows or has reason to believe that the consent is given in consequences of injury or misconception then it would be considered as a vitiated consent.
Further, Section 7 of IPC states that any expression explained in the code would apply in all provisions of the code. Thus, Section 7 gives us the basis to read Section 90 with 375.

In the scenario where the promise to marriage is the basis for obtaining consent for sexual intercourse, the above-mentioned sections permit us to consider it as "no consent" under IPC and thus the said act of the man could be interpreted as coming under the purview of the definition of Rape under Section 375.

Court's Finding by creating a line of distinction

Through various judgments given by Courts, it can be inferred that courts have created a line of distinction for sexual intercourse which amounts to rape when consent is on the false promise of marriage. The distinction is made between not fulfilling a false promise by the accused and mere breach of promise occurring due to circumstances beyond his control.

In the case of Deepak Gulati v. State of Haryana[2]. The man was not having malafide intentions and was willing to marry the woman, but the parents of the woman caught them while they were travelling from Kurukshetra to Ambala for their marriage. In this the Supreme Court held that the promise made by the man to marry the woman was not fraud therefore he will not be punished for rape.

Further, in the case of State of U.P v Naushad[3] Supreme Court held that a consent given under false promise of marriage amounts to rape. The reasoning was that the promise was false from the beginning and the boy never intended to marry the girl. It was reiterated in Anurag Soni v. State of Chhattisgarh.

The latest case of G. Achyut Kumar v. State of Odisha[4]  where the issue was only related to bail, but High Court discussed about rape on false promise of marriage. They relied on Queen v. Clarence[5] where Wills, J. while explaining it through an example, discussed that:
If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent.

Moreover in G. Achyut Kumar Judgement, Justice S.K. Panigrahi pronounced that:
The rape laws should not be used to regulate intimate relationships, especially in cases where women have agency and are entering a relationship by choice,

Hence, the extension of provisions of Section 90 to determine the effect of consent under Section 375 deserves a serious relook.
The court has not given any broad proposition that any consent obtained on false promise of marriage would not amount to rape. The Courts have discussed the facts of the different case in hand and provision of law to interpret the situations.

Concluding Remarks
If a conclusion is to be made on the stand of the judiciary, two interpretations can be seen dependent on facts and circumstances of each case. If a man had malafide intention from the beginning and he never wanted to marry the girl but gave false promise to merely obtain consent, then it would amount to rape. However, if the man always wanted to marry the girl but because of some external reason he was not able to, then it would not amount to rape but a consented sexual intercourse.

In the author's point of view, the contention on which the judiciary rightly upholds is that no broad proposition should be made in this regard, as the circumstances in which such matters arise are diverse and have unique situations depending on facts of different cases. Moreover, it cannot be a substantial presumption that men are always wrong and must be punished. While making law and rules in this regard, it must be a determining contention that while uplifting Women, we should not punish the innocents.

Many times, it is observed that women misuse the provisions of law and harass the men who are innocent in the legal framework. Society accepts men to be culprits, as there is a theory and ideas of conservative patriarchy that accepts men to be at fault because of the unlimited unquestionable authority they are given from a very long time that has made lives of other genders worse including women.

As our society is changing, its effect can also be seen on our laws and judicial interpretations and vice versa. Moreover, with the pronouncement of various historic judicial precedents including the one of decriminalization of consensual sexual intercourse between adults of any gender[6], gender neutral laws must be acknowledged and put to law books (statutes).

Neutrality is required not only in laws of rape but in the justice system altogether, that does not favor any side whether it is male, female or others. It should be kept in mind that while shaking the foundation of patriarchy we should not sow the seeds of further inequalities.

References:
  1. (2013) 7 SCC 675
  2. (2013) 16 SCC 651
  3. 2019 SCC OnLine SC 509
  4. 130 (2020) CLT 144
  5. 1888 22 QBD 23 (WH)
  6. Navtej Singh Johar v. U.O.I., (2018) 10 SCC 1


Written By:

  1. Rishav Kumar - 3rd Year Students Of Law At Institute Of Law Nirma University, Ahmedabad. and
  2. Tulsi Khoria - 3rd Year Students Of Law At Institute Of Law Nirma University, Ahmedabad.

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