Open Access Research Article
False Promise To Marry And Charges Of Rape – An Integral Assessment (By-Priyanshi Sodani)
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Article Details
False Promise
To Marry And Charges Of Rape – An Integral Assessment
Authored By - Priyanshi Sodani
B.A.LL.B. (H)
Table of contents
1.
Abstract
2.
Key
words
3.
Introduction
4.
Consent
5.
Abuse
of provision
6.
Judicial
Precedents
7.
Conclusion
v Abstract
‘Promise to marry cases’ are those
cases in which the girl has consented for having sex with the perpetrator on
the basis of promise that she will be married to the same person in future. And
when the defendant denies to marry, the girl or the woman accuses him of rape
under section 375(4)[1] of
the Indian Penal Code. In all such cases, one of the main question is of the
‘consent’ of the woman. It is often seen that the consent given is referred as
‘consent given under misconception of facts’. Section 90[2] of
the Indian Penal Code is invoked when such consent is present. Sex on the basis
of promise to marry is seen as consensual sex. The denial to marry by the man
is only seen as breach of promise to marry and not as rape in certain cases.
The courts look into the motive and intent of the man while making the promise,
whether he made the promise only for deceiving the woman and gaining consent
for sex without any actual intention to marry, or there was intention to marry
at the time of making the promise and later on it was breached. This paper
highlights the law related to consent and its interpretation done by the courts
in different cases and different times. Although it is true that the menace of
false rape cases is also soaring but still the question of consent is vital. There
is nothing specifically established whether such cases should be considered as
rape or breach of promise. But it need to be discussed and analysed keeping in
mind the culture and cultural importance provided to marriage as an institution
in India. The courts need to evolve a mechanism to understand such intimidate
relationships and to prevent misuse of the provisions.
( Key words : Consent, Misconception of facts, Promise, Breach, Rape,
Marriage, Consensual.)
v Introduction :
In our traditionally bound society,
marriage is a sacred institution and girls are forced into an unconditional
surrender of herself to their husband. Although our laws do not accept
unconsensual sex as being rape within marriage. The promise to marry has been
operated as a trap to mislead girls, who see marriage as a way of ending their
suffering. In such situations, it is enough for her to get carried away by the
presence of a lover showering praises and affection on her. The dream is
devastating when the boy refuses to own or marry her. Eventually, she alleges
rape when she has nobody to talk to with no other forseeable option. If the
girl was offered marriage before sex to secure her consent or she was denied
marriage after sex, doesn't make any difference in such cases. The latter claimant
is regarded by accusation of rape as a rejected lover seeking revenge. She was
manipulated but the law can't protect her, since consent is a defence under
current law. The boy can not be charged for rape; the trials are lengthy and
unaffordable for most of the victims; and the boy will have little to give in
terms of damages, compensation or subsequent maintenance, even if it is
concluded. It is the girl, who has to face social rejection and mental
suffering alone.[3]
“If you want to be in sexual relationship
with someone, then it's all right. But the moment something goes wrong ... one
is frustrated and begins to blackmail.”[4]
Such regressive views fail to
differentiate between consent and lack of consent and easily conflate rape with
false charges of sexual abuse. In a nation where most sexual violence against
women goes unreported, there are few and far between false allegations of rape.
Even in all the cases of rape registered in the country, there is a grey area
that could be foddering people's distorted views.
Several women bring charges of rape
every year after the men they consented to having sex with backtracked on their
promise to marry them. Since the 1980s, such cases have been the topic of
considerable discussion. Can consensual sex be retrospectively considered rape
if it breaches the promise of marriage? Or is this about a man doing false
promises to mislead a woman? If so, will it be rape, or cheating?
Some of the lawyers and activists
believe that cases like these come categorically under rape, not cheating.
"The idea of such passive submission need to be acknowledged and also the
consent wrongly obtained – even if not physically or forcibly obtained."
If any man promises to marry to obtain consent, he knows the power of the 'promise
to marry,' and he surely also
know how breaking that
promise could affect the woman. In the Indian context, this could lead to
severe social stigma and various economic disadvantages, specially in cases
where the women or the lady becomes pregnant.
However, on the other side, there are
scholars who will not describe such breach of promise as rape. They believe
that bringing such cases under the ambit of rape is misuse of rape laws. They
believe that a breach of promise should be treated as cheating or should be prosecuted
under the Indian Contracts Act, 1872, rather than applying the rape laws.
Technically, the Indian Penal Code
does not contain a provision expressly defining breach of a promise of marriage
as rape. Section 90, when describing "consent" in general, states
that if consent is given "under misconception of fact" and if that is
known to the perpetrator, it can not be considered as consent. Nationwide, the
courts also use this section of the Indian Penal Code to interpret cases where
the breach of promise to marry is involved. The courts also often tend to
invoke Section 375(4).
v CONSENT?
There are conflicting opinions
challenging the legitimacy of the Indian criminal justice system's
"Consensual sexual intercourse on a commitment to marry" being called
rape. This is also challenged by allegedly stating that this is an crime coined
by judges since there is no clause in the penal code concerning the same.
Legally speaking, the Indian Penal
Code section 90 describes "consent" assumed to be given under fear or
misconception.
“A consent, here, is not a such consent as it is intended by any section
of the Indian Penal 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;”
Although, courts are likely to invoke Section 375(4)
of the IPC, according to which a man is guilty of commissioning rape against a
woman if he is conscious that he is not her husband but she gave her consent
because she assumed that he was another man to whom she is or
believed to be legally
married.
Yet, in our legal system,
courts are bound to believe the victims in the matter of consent. The courts
had to assume that if she deposes then perhaps the victim has not given her
consent. Strict rape laws in India bind the courts pursuant to Section 114A[5] of
the Indian Evidence Act to conclude that the survivor has not given her consent
if she deposes that she has not given her consent and Section 90 of the IPC
constitutes the consent obtained to be invalid under misconception of fact.[6]
For obvious reasons, the
norms in love affairs failure, claim that if the victim submits to the
accused's lust under the assumption that he will marry her, then the sexual
intercourse is unconsensual.
v ABUSE OF PROVISION :
These were unfounded lawsuits filed
for revenge, and they had run dry time for the courts. It is a direct result of
these false cases that genuine assault cases, which Section 375 of the Indian
Penal Code was authorized to address, were left pending for a considerable
length of time.
The question is whether a false
promise to marry falls within the scope of Section 375 IPC, or is it a case of
misplaced sympathy where the cure is worse than the illness? And whether the
ambit of Section 375 can or cannot contain a false promise to marry?
Consent is at the core of rape
offence. There are three types of rape in law depending on the essence of the
consent, or the lack thereof :
1. Rape by force - where consent was
explicitly denied; or where consent was given under duress or coercion; or when
the victim was unable to consent because of the physical or emotional condition
in which she was.
2. Statutory rape - where the victim
was not in position to give consent due to age.
3. Rape by fraud - where consent was
received by the use of deceit.
Rape by a false promise
to marry is an extension to the third category i.e. Rape by
Fraud. This new offense was read into IPC
Section 375 using Section 90 IPC 's interpretation of the term
"consent." According to that interpretation, if given under a
misconception of fact, consent is vitiated.
Based on such
interpretation, the courts interpreted the word 'consent' in the term
'secondly' under section 375 i.e. 'without its consent;' and held that any
consent given under a misconception of fact is vitiated and hence the act
becomes an act without consent, thereby rendering it violate and making it
rape.
This extension and reasoning is an
utter mistake. The reasons behind why it can't be said that any false
commitment to marry applies for rape u / s 375 IPC offence are described below.
·
Section 375, IPC – Absolute and
Exhaustive
Nothing should be read into it, as a
penal provision. It has to be purely understood and its terms can not be
twisted to bring a new definition to the offence.
Section 375 contains six
specifications. Each description is different from each other and is distinct.
The key factor differentiating each description is the existence and nature or
lack of the consent. Descriptions 'first' and 'second' deal with situations
where consent is absent altogether. In 'first,' given an implicit denial of
consent, the act is committed.
The second description deals with
cases in which the act was committed without any positive assertion or denial
of consent, i.e. cases in which the victim was not in a physical or mental
condition to give consent. cThus, each of these desriptions deal with actions
that have been committed without explicit or implied consent. Neither of these
descriptions deals with the purpose of the consent or its vitiation, as the
aspect of consent is fully absent.
The purpose of the consent given and
its vitiation is important in the next three descriptions i.e. descriptions ‘
thirdly 'to ‘ sixthly'. Specifically, these descriptions describe situations
where the act was committed 'with her consent.' In reason of those definitions,
if the conditions described in the explanations apply, the consent given before
the act is vitiated or becomes irrelevant. And the two different sets of
descriptions are clearly differentiated. Those descriptions do not overlap and
a case of no consent is very different from a case of vitiated / invalid
consent.[7]
Consent given on the pretext of a
mistaken promise to marry is a vitiated / invalid consent case. This is not a
case of not giving consent at the time of the relevant act. Holding it under
the 'secondly' given in the section is also an abuse to the scheme of Section
375. If the legislature had meant a false promise to marry as an offense of
rape , a component of it should have been made to the descriptions 'third'
to 'sixth.' This express absence, so to speak, clearly shows the Legislature's
intent. By misconstructing the description 'secondly' the courts could not have
made it one.
Therefore the said act could not have
been read into Section 375 IPC's description 'secondly' except by using the
general meaning of the word 'consent' given in Section 90.
·
Section 90 is a general concept in
the General Exceptions chapter and can not exceed any particular provision
under the Code.
The definition of consent defined
under section 90 may extend to other IPC provisions such as Sections 87, 88, 89
of IPC, where the word "consent" has been used but has not been
specified or restricted. It can not, however, refer to Section 375, where the
extent and purpose of the consent and the conditions in which it is vitiated
have been clearly set out.
Descriptions 'third' to 'sixth'
specifically and explicitly provide for circumstances in which consent will be
considered vitiated. Although following the principle of invalidation of
consent given under fear - which is also part of Section 90 - these definitions
explicitly omitted the principle of invalidation of consent due to
'misconception of fact' as a basis for refusing the consent given to the
relevant act. In fact, the revised Section 375 provides an definition
describing 'consent' itself. This description itself now dismisses the need to
use the Section 90 definition. A specific and exhaustive special provision
should not have been overridden by the general interpretation clause to bring
an offense not intended by the Legislature into the scope of the law.
·
Misconception of fact.
Notwithstanding the applicable
reasons set out above, even though Section 90 corresponds to Section 375,
"misconception of fact" can not be left undefined with an open end.
Doing so would render it unlawful in relation to and as an essential element in
an offence such as rape. In jurisdictions where rape by fraud is a crime, it is
considered a crime only the deceit which depicts the meaning or intent of the
sexual act itself. False marriage assurances are not
relevant as they do not alter the
victim's understanding of the actual "nature or purpose of the relevant
act." In the case of a false promise of marriage, the victim is well aware
of the true nature and purpose of the act concerned. This understanding of the
sexual act concerned does not get distorted by a false promise of marriage.
This can encourage the victim, but it does not alter her perception of the
action. Therefore the perpetrator can not be found to have committed rape under
these situations.
A restrained interpretation must be
given to the words 'misconception of facts' listed in Section 90 IPC. If not,
any and every exaggeration; act of boasting; or falsity, which motivated the
consent, would lead to a consent vitiating 'misconception of fact' and
therefore bringing the act into the offense of rape. The act of deceiving a
person for consent is different from deceiving the person of the actual nature
and purpose of the act itself. Only the latter is Rape by fraud although both
are deceptive acts.
·
Intent & Motive.
Any adjudication based on a guarantee
of marriage is highly vague and is unable to fulfill the standard beyond
reasonable doubt. The presumption of 'the offender's true motives' to
adjudicate a 'misconception of fact' case can be readily applicable in
commercial transactions. Nevertheless, the applicability of the same test is
legally problematic in the scope of Section 375 and commitment to marry where
complicated and personal human relationships are involved, and where reliable
evidence pertaining to motives is very private and rare.[8]
Therefore, it is completely arbitrary
to enforce the strict rigors / presumptions in the evidentiary laws passed by
the legislature for the offense of rape — by which it meant primarily rape by
force — and the precedent established by the Supreme Court on the sole
reliability of the prosecutor's argument. Such reasons are adequate in
themselves to challenge the constitutionality of this case-law offence.
To provide, the Hon’ble Supreme Court
in the case of Deepak Gulati v. State of
Haryana[9], stated
that ,
“18. Consent may be express or implied, coerced or
misguided, obtained willingly or through deceit held it Consent is an act
of reason, accompanied by deliberation, the mind weighing, as in a
balance, the good and evil on each side. There is a clear distinction
between rape and
consensual
sex and in a case like this, the court must very carefully examine
whether the accused had actually wanted to marry the victim, or had
malafide motives, and had made a false promise to this effect only to
satisfy his lust, as the latter falls within the ambit of cheating or
deception. There is a distinction between the mere breach of a promise, and not
fulfilling a false promise. Thus, the court must examine whether there was
made, at any early stage, a false promise of marriage by the accused; and
whether the consent involved was given after wholly, understanding the
nature and consequences of sexual indulgence.”[10]
v Judicial Precedents :
Ø Bhupinder Singh v. Union territory of Chandigarh[11] :
In this case, the accused used to
visit the office of the complainant and developed intimacy with her and asked
her to marry. They got married in Gurudwara and performed rituals of exchanging
garlands too. The complainant started co-habiting with him and later on, got
pregnant. But accused got her aborted against her wish. She got pregnant again
and one day came to know that the accused is already married to some other
woman and have children as well. She asked the accused about previous marriage
but the accused left the home on the pretext of attending some training course.
Later, she gave birth to a child but the accused never returned back. She filed
police complaint and case was registered.
“In this case consent for
co-habitation was given her under the belief that the accused was her husband.
Accused was held guilty of rape because prosecutrix married accused without
knowledge of his first marriage. It was held that the delay in filing complaint
cannot wash away the offence in any event because consent given under belief
that accused is her husband is no consent. Therefore, the accused was
convicted.”[12]
The facts of this case are related to
‘promise to marry cases’, where the accused respondent gained the consent for
sex on the basis of the promise that he will marry her in the future and
thereby making her pregnant. Later on, the parents of the accused denied this marriage.
In its words, the courts held that,
“12. The trial court has justified in awarding of maximum sentence
of life imprisonment to the accused under Section 376[14] of
the IPC on the ground that the facts of this case are of a very grave nature.
The accused being related to the prosecution used to often visit her house and
took undue advantage of this relationship and kept the prosecutrix under the
misconception that he would marry her and committed rape on her for more than
two years thereby making her pregnant. In such circumstances, the trial court
held that it would be justifiable to award the maximum sentence to the accused.
We, therefore, hold that the trial court was correct in awarding the maximum
sentence of life imprisonment to the accused as he has committed a breach of
the trust that the prosecutrix had in him, especially due to the fact that they
were related to each other. He thus invaded her person, by indulging in sexual
intercourse with her, in order to appease his lust, all the time knowing that
he would not marry her. He committed an act of brazen fraud leading her to
believe that he would marry her.”
Hence,
the court held the accused guilty for rape as the consent was given under a
‘misconception of fact’.[15]
Ø Rajeev Sharma v. State of M.P.[16] :
In this case, “the marriage of the
accused was fixed with the victim. He then used to visit her
house when her parents were not present. When he approached her for physical
relationship, she refused. He insisted her by saying that, their marriage has
been fixed, therefore, she consented. On the pretext of marrying her, the
petitioner established physical relationship with her. Later, he backed out.”
The court held that
“15. In the present case
the "consent" for sexual intercourse was obtained by the petitioner
inducing the belief to the prosecutrix that the petitioner/accused would marry
her. It seems to be fraud that was practised on her or that she was deceived by
giving false assurance. The "consent" so obtained by deceitful means
is not a "consent" and the offence comes within the
ambit and ingredients of
definition of rape.”
“18. In
the present case, the accused had sexual intercourse with the prosecutrix by giving
false assurance to the prosecutrix that he would marry her. From this, it is
evident that he never intended to marry her and procured her
"consent" only for the reason of having sexual relations with her,
which act of the accused falls squarely under the definition of
"rape" as he had sexual intercourse with her consent, which was
"consent" obtained under a misconception of fact as defined
under Section 90 IPC.”
“The
court observed that the consent in the present case was not
“voluntary”, it was under the misconception of fact which certainly amounts to
“rape”. The Court also concluded that the petitioner invaded the prosecutrix’s
person by indulging in sexual intercourse in order to appease his lust.”[17]
v Conclusion :
Whether in case, breach of promise to
marry after sexual intercourse is not necessarily, in itself, an act of rape
under the purview of Indian criminal laws. Because of the lack of a
testamentary rules, it essentially relies on the discretion of the court
depending on the merits of evidence and circumstances in the specific case when
ruling on the subject of rape on the false promise of marriage.
This is evident from the arguments
and cases presented in this research paper that in giving this ethical
connotation to the heinous crime of rape, beyond the definition of law, we have
seriously diminished the scope and efficacy of the law against rape. Even this
ethical connotation perpetuates a patriarchal belief that necessarily
underestimates a woman's participation in sex matters. These legislations are
detrimental for any free society. Through neglecting any act of deceit and
omitting it from the bracket of rape, we end up doing a great disservice to the
victims of such fake promises. Therefore, simply because the accused married
another lady and/or subsequently denied to marry the victim or the victim has
consented believing that fake promise, there is no excuse not to convict the
accused for the crime punishable under section 376 of the IPC. The perpetrator
has to face the repercussions of the crime which he has committed.
The legislation desperately demands a
relook before it ruins more lives in the process !
Article Information
False Promise To Marry And Charges Of Rape – An Integral Assessment (By-Priyanshi Sodani)
Authors: Priyanshi Sodani
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/09/09
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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