CONSENT OR COERCION: UNVEILING THE REALITY OF RAPE AND FALSE MARRIAGE BY - KRISHNA KUMAR SINGH
CONSENT OR
COERCION: UNVEILING THE REALITY OF RAPE AND FALSE MARRIAGE
AUTHORED BY
- KRISHNA KUMAR SINGH
B.A.L.L.B. (3rd Year),
Faculty of Law, University of
Lucknow, Lucknow, Uttar Pradesh, India.
ABSTRACT
Rape is not a crime against
Women but against the whole Society. Rape directly affects the autonomy of
women. Rape infringes many fundamental Right of women, i.e. Right to Privacy,
Right to Life, etc. Sexual Intercourse on the pretext of marriage is a
concept that has been decided by the Court a decade ago, but there is no law
related to it at present in India. Parliament passes a bill of BNS (Bharatiya
Nyaya Sanhita), BNSS (Bharatiya Nagarik Suraksha Sanhita) and BSA
(Bharatiya Sakshya Adhiniyam). Sec 69 of BNS talks about Sexual Intercourse on
pretext of Marriage. Testimony of the Victim plays a very crucial role in Cases
of Rape and Sexual Intercourse on the pretext of Marriage which can be used
without Corroboration. That’s why it is said by the Court that “THE RULE OF
CORROBORATION IS NOT A RULE OF LAW BUT A RULE OF PRUDENCE”. In case of Rape, circumstantial
Evidence plays a very crucial role. In Medical Examination of the Victim,
Intact or torn Hymen is not taken into consideration for determining
the offence of Rape and Virginity. Two -Finger test is declared
Unconstitutional as this is not Scientific technique and infringes the Right to
Privacy of the Women. It is not necessary that the if Hymen is intact then
rape not committed and if torn then only rape is committed. This test is also
known as the “test the laxity of the vagina”. This test measures the habituated
of Sexual intercourse. Zero FIR is one of the foremost provision that was
included after the Nirbhaya case in 2013. In this article, the Crucial aspects
of Rape and Sexual intercourse on the Pretext of Marriage with case laws
discussed in the very elaborate way. This article helps to clear many
misconceptions related to the Rape and Sexual Intercourse on the Pretext of
marriage.
INTRODUCTION
Rape is one of the brutal and heinous
Crime in society which is explained in Section 375 of Indian Penal Code and
Section 63 of Bharatiya Nyaya Sanhita. The Crime of Rape is one of those
offence whose affect is directly on Women. Rape in simple words means the
penetration of the penis to any extent into vagina of a Women. That’s
definitely does not matter that to what extent penetration is there, if there
is slightest penetration then also that act amounts to Rape. That’s why
word “to any extent “used in the definition of Rape under IPC and BNS. At
present the cases of Sexual intercourse on the pretext of Marriage is
increasing day by day and it arises as one of the biggest puzzler in modern day
society. There is no Express provision for Sexual intercourse on the
pretext of Marriage is there in IPC and that’s the reason to introduce the new
Section 69 in the BHARATIYA NYAYA SANHITA(BNS). In this article all the
different aspects of sexual intercourse on the pretext of Marriage is discussed
in detailed manner.
STATUTORY
MANDATES
Section 375 of IPC and Section 63 of
BNS define the criteria on the basis of which the person convicted for
Rape.
“Rape- A
man is said to commit "rape" if he--
(a)
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
(b)
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
(c)
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
(d)
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:
First.
Against her will.
Secondly.
Without her consent.
Thirdly. 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.
Fourthly. 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.
Fifthly. 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.
Sixthly. With
or without her consent, when she is under eighteen years of age.
Seventhly. 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.”
WHAT IS
CONSENT
SECTION 28[2] OF
BNS (SEC 90 OF IPC)-
“A consent is not such a consent as is intended by any section of this Sanhita –
a) 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
b) if the consent is given by a person
who, from mental illness, or intoxication, is unable to understand the nature
and consequence of that to which he gives his consent; or
c) unless the contrary appears from the
context, if the consent is given by a person who is under twelve years of age”
In Section 28 (a) two condition must
be fulfilled for its application. Firstly, Consent is given by a person under
fear of injury or misconception of fact. Secondly, it must be proved that the
person doing the act knows or has reason to believe that the consent was given
in consequence of such fear or misconception. This section apply to those cases
where the consent is taken by the other person in misconception of fact.
Now other question arises that when
to take Consent?
The answer of this Question is that
the consent should be taken by the Person prior to sexual intercourse. Consent
obtained after the sexual intercourse is NO CONSENT at all.
“Every act done “against the will “of
a woman is done ‘without her consent but an act done ‘without the consent’ of a
woman is not necessarily” against her will”[3]
Saleha Khatoon v. State of Bihar and
Ors.[4] “The Hon’ble Mr. Justice L.P.N.
Shahdeo, Patna High Court held that consent obtained on the basis of fraud or
consent which is based upon deception cannot be termed as consent.”
Sex workers are adults who consensually give
sexual services in exchange for money or goods. Consent plays a major role
in the sex workers profession, a person incapable to perform sexual
intercourse without the consent of the sex Worker/ Prostitution. So, to
have sexual intercourse with any Women consent played a very major role.
“If the woman was willing to allow
sexual intercourse with her for money consideration, the fact that the
consideration was found to be fictitious would not vitiate the consent”.[5]
The Plea of the respondent that the
hymen of women is intact, so no criminal charges of Rape is not tenable.
FALSE
MARRIAGE
In India, Sexual intercourse on
the pretext of false Marriage amounts to Rape in IPC but in BNS it is not come
under Rape but as a Separate offence under Section 69. If some person
commits sexual intercourse with other person with the consent that he will
marry her, but in reality he doesn’t have any intention to marry from very
beginning, and try to misrepresent that girl only to satisfy his lust. That
person will be charged for rape under Section 376 read with Section 90 of
the IPC and Section 69 under BNS. Under BNS, convict charged for
maximum of 10 years imprisonment and fine under Section 69 of BNS.
“Whoever, by deceitful means or
making the promise to marry to a woman without any intention of fulfilling
the same, and has sexual intercourse with her, such sexual intercourse not
amounting to the offence of rape, shall be punished with imprisonment of either
description for a term which may extend to ten years and shall also be liable
to fine.
Explanation- “deceitful means” shall
include the false promise of employment or promotion, inducement or marring
after suppressing identity.”
Sexual offences include Deceit and
false promise of Marriage, which is one of the biggest problem in the legal
System. Whoever by deceitful means or false promise to marry committed sexual
intercourse without intention to execute its promise to marry and only want to
satisfy his lust. Intercourse on genuine promise of Marriage is Consensual Sex.
ESSENTIALS OF SECTION 69 OF BNS
1. Deceitful means or by making promise
to marry
2. Without intention
3. Sexual intercourse
4. Such sexual intercourse not amounting
to rape
PUNISHMENT – 10 YEAR & FINE
Under IPC there is no specific
provision for Sexual Intercourse on False pretext of Marriage and that’s why
this type of case is come under Section 375 read with Sec 90.
False marriage- It is given with the intention that
it will be broken in future.
Breach of promise- It is made in good faith but
subsequently not full filled.
For example, in R. v. Flattery[7],
“a nineteen-year-old girl consulted the accused, a doctor, for treatment for an
illness. And the accused, on the pretext of giving her surgical treatment, had
carnal intercourse. The victim having submitted herself on the genuine belief
that she was being treated, the accused was held guilty of rape.”
Similarly, in
R. v. Williams[8], “when the accused,
who was engaged by the victim to give her lessons in singing, had sexual
intercourse with the victim on the pretext that he had to perform an operation
on her to produce her voice properly. Thus, the victim having submitted herself
on this premise but without any intention of having sexual intercourse, the
King's Bench upheld the conviction of rape.”
CORROBORATION
OF EVIDENCE
For conviction of rape corroboration
is not necessary. The victim of Rape don’t want to defame his family and
degrade her sanctity by false allegation of Rape against any other person.
The crime of Rape degrades the personality of victim and start feeling ousted
from the society because of the behaviour and act of the Society. No women want
to tarnish her life by making the false allegation. So, if a case of
rape came before the court then court should accept it as true not fabricated.
In certain circumstances court also takes medical evidence as corroboration.
If a false allegation is made by the
Victim then in that case if the Victim is Unmarried then she will face problem
in future to get marry. If the victim is married then she will ousted from
the society and leaves a permanent scar on image of victim. Therefore, if
this is a situation then no women want to put the false allegation of Rape to
destroy her Life.
In some cases respondent pleads that
Victim is not Virgin or have done sexual intercourse before that also, but this
reasoning doesn’t give the license to offender to commit Sexual intercourse
without her Consent.
Rafique
v State of U.P[9] - Krishna Iyer, J. said, “A sensitised judge who sees
the totality of the circumstances would nor reject the testimony of the rape
victims unless there are very strong circumstances initially against its
veracity. Therefore, it is not always necessary that the testimony of the
victim be corroborated by some other evidence before the accused can be
convicted.”
State of H.P. v Raghubir Singh[10]- “Convincing and trustworthy
testimony of the prosecutrix corroborated by medical evidence and testimony of
other prosecution witnesses, conviction is maintainable.”
In case of Krishna
Lal v State of Haryana[11]
– “Krishna Iyer J. observed: “A Socially sensitised judge ia a better
statutory armour against gender outrage than long clauses of a complex section
with all the protections writ into.”
Gajanand v State of
Gujrat[12] – “The accused can be convicted on
the lone testimony of the prosecutrix without Corroboration.”
In Imrat Lal v State of M.P.[13]-
“The rule of corroboration is not a rule of law but only a rule of Prudence.”
DYING
DECLARATION (Section 26[14]
of BSA)
The Statement made by person as to
the cause of his Death whether the person who made them was or was not, at the
time when they were made, under expectation of death. Conviction can be
granted on sole basis of Dying Declaration.
SHALL
PRESUME (Section 120[15]
of BSA)
In prosecution for Rape under sub
section (2) of Section 64 of BNS, where sexual intercourse is proved and
question is whether she gave her consent or not and if women give evidence that
she did not consented for Sexual intercourse then court shall presume that she
did not give Consent. Then burden to prove is shifted on accused to prove that
Sexual intercourse is done with mutual Consent.
ACCOMPLICE
“In a case of rape, the victim
is not treated as an accomplice. Evidence of the victim is to be treated
almost like the evidence of an accomplice requiring corroboration.”[16]
Aman Kumar v. State of Haryana[17]- “It is well settled that a
prosecutrix complaining or having been a victim of the offence of rape is
not an accomplice after the crime.”
CONVICTION BASED ON CIRCUMSTANTIAL OR
DIRECT EVIDENCE
DIRECT EVIDENCE
Direct evidence is evidence
that directly proves that a offence is committed or not without inference/
presumption from the fact. Direct evidence include the Video Record, written
Confession, audio recording and Eye witness testimony. This type of Evidence is
More reliable than the Circumstantial Evidence.
CIRCUMSTANTIAL EVIDENCE
Circumstantial Evidence is also known
as Indirect Evidence. In this case, the person can not prove anything
directly by help of audio, video Record, eye witness etc. Circumstantial
Evidence is that type of Evidence in which Inference/ presumption is taken to
connect the Evidence from Fact or Conclusion. It is less reliable than the
Direct Evidence but is used as an Evidence where Direct Evidence is not
present.
In the case of Rape or Sexual
intercourse on pretext of Marriage, Circumstantial Evidence is one of the
essential Evidence to prove the charge of Rape on the offender, because in
this type of Crime, the offence is committed under the four wall or some remote
area or area where public access is not there and that’s why there is no chance
or very minimal chance to get the Direct evidence to prove this type of Crime.
In this Cases we have other option that is Circumstantial Evidence, by which we
can prove through the inference, assumption or circumstances of the Case.
State
of U.P. v Desh Raj[18]- “It was held that Circumstantial Evidence clearly
point to the guilt of the accused.”
MEDICAL
EXAMINATION OF VICTIM OF RAPE (SECTION 184 OF BNSS/ SECTION 164A OF CrPC)
Where, during the stage when an
offence of committing rape or attempt to commit rape is under investigation, it
is proposed to get the person of the woman with whom rape is alleged or
attempted to have been committed or attempted, examined by a medical expert,
such examination shall be conducted by a registered medical practitioner
employed in a hospital run by the Government or a local authority and in the
absence of such a practitioner, by any other registered medical practitioner,
with the consent of such woman or of a person competent to give such consent on
her behalf and such woman shall be sent to such registered medical practitioner
within twenty-four hours from the time of receiving the information relating to
the commission of such offence.[19]
Medical Report plays a salient role
in the offence of Rape. That’s why this provision talk about the medical
Examination of the Victim by the Registered medical practitioner. This
examination is done in Government or Local Hospital. If victim is child then
Consent is given by their Parents/Guardian is valid. Examination should be done
within 24 hour from the information received by the authority. If it is done
after that time frame then in that case there is a chances that the evidence
like DNA, HAIR SAMPLES, SEMEN ,SALIVA, CELL PARTICLES etc. are washed away or
reduces its reliability. These evidences is there in natural form only till 24
hour after that evidences start to deteriorate. If the medical Examination is
done after some days then in that case, there is high chances of acquittal of
offender and if medical Examination is done under the time frame then there is
high probability that offender will be convicted on the basis of Medical Evidence.
But this definitely not means that the only on Sole basis the offender will be
convicted or acquitted.
ZERO FIR
The FIR is filed by the victim in the
Police Station where the act is committed irrespective of the Jurisdiction and
then transfer that FIR to their police Station of Original Jurisdiction. And
then the investigation commences after FIR transferred to the Original
Jurisdiction. This scenario of Zero FIR started after the Nirbhaya Gang Rape that
puts the obligation on the Police officer to file FIR no matter that Rape case
belongs to other Jurisdiction. Zero FIR is a one of the most substantial
Provision in India but not used efficiently because lack of awareness in People
and Police officer. Now there is need to introduce this provision to larger
extent so that everyone got to know about this and avail this remedy through
Conference, Seminar, Workshop etc.
Under Section 173[20] of
BNSS it is mentioned “IRRESPECTIVE OF THE AREA” which means that any
person can give information of cognizable Cases either in Oral or by electronic
means to officer in charge of Police Station and that’s not matter that in what
jurisdiction crime is committed.
If Sexual offence is committed or
attempted against women (Section 64 to 71 & 74 to 79 & 124 of BSA)
then such information shall be recorded by a women police officer not Male
police officer.
Sexual violence is,
disturbingly, a growing trend in India. According to the data compiled by
National Crimes Records Bureau (NCRB), “4,15,786 rape cases were
reported across India between 2001 and 2017. On average, 67 women were raped
every day across the country during these 17 years, or, in other words, about
three women had been raped every hour.”[21]
MEDICAL
EXAMINATION
This is a general assumption of the
people that if Hymen is torn then rape is committed otherwise not. But this is
a big misconception in Peoples related to this offence of Rape. There is cases
where hymen remain intact and rape was committed by the offender and on the
other side there are cases where hymen torn but Rape not committed. So,
assumption related to Hymen is totally wrong. The shape of Hymen is
irrelevant because Hymen can be torn due to the Cycling, exercise, Masturbation
etc. What are relevant during the Medical Examination is to examine the fresh
tear, Bleeding etc.
Two Finger Test is strictly prohibited and declared
unconstitutional in India in 2013. Two Finger test means that the registered
medical Practitioner insert two finger into vagina of the women to find out
that whether the vagina is intact or torn. It was used to find out Whether
women are habitual of Sexual intercourse or not. If yes, then Hymen is torn and
not then that will remain intact but this concept is totally misguided and
erroneous as it is not Scientific. There are many cases where the vagina is
torn without sexual intercourse due to exercise, Cycling and masturbation etc.
and many cases in which it will remain intact after sexual intercourse
also. This is totally depend on the person to person and this concept is
not scientific. This method violates the Right to Privacy of the Victim and
also physical and Mental Integrity. Two
-finger test is declared unconstitutional by the Supreme Court because it is
unscientific. This Technique is still used in South Asian Countries. In
the case of Rape, the sexual history of Women is immaterial.
WORLD HEALTH ORGANIZATION said that while dealing with the
Sexual offences and Rape, Two Finger test is not Scientific.
CONCLUSION
Rape is one of the heinous Crime in
the whole World, which is continuously increasing day by day. The reason is
different for different people, but the main reason for this is liberal
punishment which is provided by the court to the Convicts. If Court wants to
reduce the number and intensity of cases, then Court should provide the
strict punishment which creates deterrence in the Society. Otherwise, the rate
of rape is continuously increasing in the Society without trepidation in the
Society. Counsel of the victim (Prosecution) must present enough evidence
to prove it beyond a reasonable doubt. The Confession of the victim should not
necessarily be corroborated with evidence, in certain cases Medical Evidence is
Required. In case of Rape, Circumstantial Evidence plays a very important Role
to prove the Crime beyond reasonable doubt. Intact/raptured Hymen didn’t play a
very crucial role in determining the Rape.
[2] Bharatiya Nyaya Sanhita, sec.28.
[5] Moti Ram, AIR 1954 Nag. 922.
[6] Bharatiya Nyaya Sanhita, sec.69.
[7]R. v. Flattery [L.R.] 2 Q.B.D. 410.
[8] R. v. Williams [1923] 1 K.B. 340.
[10]State of H.P. v. Raghubir Singh (1993), 2 SCC 622.
[11] Krishna Lal v. State of Haryana (1980), 3 SCC 150.
[12] Gajanand v. State of Gujrat, 1987 Cr Lj 374 (Guj).
[13] Imrat Lal v. State of M.P., 1987 Cr LJ 557 (MP).
[14] Bharatiya Sakshya Adhiniyam, sec.26.
[15] Bharatiya Sakshya Adhiniyam,
sec.120.
[18]State of U.P. v. Desh Raj, 2006 Cr Lj 2018 (SC).
[20] Bharatiya Nagarik Suraksha
Sanhita, Sec.173.
[21] D. Rai, Sexual
violence pandemic in India : Rape cases doubled in last 17 years, India
Today (13/12/2019), available at https://www.indiatoday.in/diu/story/sexual-violence-
pandemic-india-rape-cases-doubled-seventeen-years-1628143-2019-12-13, last seen on 25/03/2024