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NAVIGATING CONSENT AND DECEPTION: A LEGAL AND ETHICAL ANALYSIS OF SEXUAL RELATIONS ON FALSE PROMISES OF MARRIAGE
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NAVIGATING CONSENT AND DECEPTION: A
LEGAL AND ETHICAL ANALYSIS OF SEXUAL RELATIONS ON FALSE PROMISES OF MARRIAGE
AUTHORED BY -
RAHUL PATHANIA
Marriage is the union of
two people granting them recognition in the eyes of the law and society for
their long-term commitment, various irrevocable aspects such as Exclusive
partnership, financial interdependency, and legal obligations are accepted by
following the union. The core concept of marriage exists to procreate and
coexist together for a better and healthy life. In Hinduism, the consummation
of marriage is essential. Mutual consent must be there for the consummation of
marriage. Having sexual intercourse of any kind without consent amounts to
Rape. However, obtaining consent with the false promise of marriage constitutes
rape and a person may be charged with section 375[1]
of the Indian Penal Code only if the accused had the malafied intention[2]. Deception
can never be the reason for consent, it is not regarded as consent at all.
KEYWORDS: Rape, Deception, False promise of marriage, Intention,
Consent.
INTRODUCTION
Marriage is considered a
sacred and holy bond, it is an institution in which two people decide to spend
their life together to coexist. Sexual intercourse is a common practice in a
marriage, in various scenarios, the promise of marriage is used as an
instrument to obtain consent from the female to situate a sexual relationship.
The problematic thing in this is that the person giving the consent is under
the false pretext of marriage. Consent is a vast term that has been defined
under section 90[3] of the
Indian Penal Code of 1860 (Hereinafter called IPC).
Establishing a sexual
relationship outside the arena of marriage is often stigmatized, marriage is
the bond that creates the social acceptance and right of the party to have
sexual relations within the arena of marriage. Sexual relationship under the fake
promise of marriage is the situation that is challenging the general concept of
“Consent”.
Consent is infused with
the offense of rape in a way that it is the most essential element of this
gruesome crime, Rape defined under section 375 of IPC flashes a light on
consent as it has the most prominent value out of every other element of the
offense of rape. People believing that obtaining consent in any way may not
amount to rape uses the false promise of marriage as a way to commit this
unspeakable crime. The presence of consent without proper means does not
nullify the possibility of prosecution for the offense of rape. The question
that arises is how much the value of consent weighs.
The meaning of consent with regards
to Rape
Consent has been defined
under section 90 of IPC i.e. consent given under fear or misrepresentation. The
definition given under IPC is negative and states that consent under the
misconception of facts, fear of injury, or deception is not considered to be
consent at all. Free consent must be obtained without any deception, if it is
not obtained rightfully then it is “No Consent”
In Yedla Srinivasa Rao v State of
A.P[4].
The court held that the consent was given under the false promise of marriage
which falls under the provision of section 90 of IPC and does not qualify as a
valid consent.
Contrarily, In the case
of Uday
v State of Karnataka [5]
The supreme court held that in no scenario the consensual sex be
converted into a rape accusation. Promise to marry with bonafide intention and
later on a bonafide refusal cannot be considered under the ambit of 375 read
with section 90.
MATTER OF OBTAINING CONSENT
Consent the the most
essential element in a situation of sexual relationship and consent must be
obtained in a bonafide manner. Consensual sex does not amount to rape but the
way of obtaining the consent is crucial. The promise of marriage is the surety
that the person gives to obtain consent for consensual sexual relations, but if
the initial intention of the person obtaining the consent is malafide then the
consent obtained will be considered to be obtained by the misconception under
section 90 of IPC.
In the other scenario if
the promise of marriage was made with a bonafide intention and sexual relation
was situated on that promise and due to the unforeseeable circumstance the
person is not able to marry, this doesn’t constitute the offense of rape as the
initial intention was bonafied[6].
JUDICIAL OPINIONS
There is a vast
difference between “Promise”, “False Promise”, and “Breach of Promise”. In the
case of sexual relationships on the false pretext of marriage, the intention of
the person making the promise should be malafide from the initial stage, and if
the intention was bonafide and in the course of the relationship due to some
unforeseeable circumstance it changes then that doesn’t constitute the offense
of rape under IPC.
In State of Uttar Pradesh v Naushad[7],
The Defendant was
involved in a sexual relationship with the victim and had sexual intercourse
frequently for 2 years, after the pregnancy of the victim the defendant tried
to abscond her, and the court convicted her with section 376 of IPC for making
the false promise of marriage.
In SACHIN @ DEVENDRA GAJANAND
SANGRAY V STATE OF GUJRAT[8],
The accused and the
victim both were receding at the same premise and having a sexual relationship
for 1 year, due to some internal conflicts they separated and broke up with
each other, after some time the accused went to the victim house and invited
her to his marriage. The victim pressed charges of rape against the accused
under the sexual relation with the false promise of marriage. The High Court
concluded that both the parties were residing together and having a physical
relationship consensually and the intention was not malafide at the accused’s
end. The court acquitted the accused.
In ANURAG SONI V STATE OF CHATTISGARH[9]
In this case the accused
never intended to marry the victim from the very beginning and made the false
promise of marriage just to obtain consent to situate the sexual relationship
with the victim. The consent obtained was under the misconception as per
section 90 of IPC and the supreme court convicted the accused for the offense
of rape.
ETHICAL VIEWPOINT
“Ethically flourishing
society is a society where wisdom is cherished”. Rape if not just a crime
against a person but it is a crime against society as a whole. Rape under the
false pretext of marriage is as heinous as rape without consent. The
relationship made under the false promise of marriage just to establish a
sexual relationship not only constitutes an offense but also is an ethical
wrong. In Hinduism, marriage is both contractual and sacramental. The
sacramental part makes the bond of two individuals holy, two individuals unite
to fulfill their duties towards their religion together i.e. Dharma (Duty),
Artha (Possesion), and Kama (Physical attributes). The false promise of
marriage also violates the fundamentals of this holy union.
Ethical duties are not
imposed on a person unlike legal duties and obligations but they have the
utmost value as they are the driving force that shapes the society and
individuals living in it.
CONCLUSION
Rape is a serious
accusation and has a lifelong effect on the accused as well as the victim, it
is a crime against society as a whole. Rape is not something that is always
committed forcefully, Sexual relations created based on the false promises of
marriage also constitute the offense of rape. Consent is the key point in the
offense of rape, everything is a matter of consent and how it has been
obtained. The promise of marriage is often used as a bargaining chip to situate
a sexual relationship and it often ends in disarray. The promise of the holy
union of two people is often used by people with ill mindsets to fulfill their
shady desires.
Crimes like murder kill
the body but the crime of rape kills the soul residing in it, Rape is not just
a crime against a person's physical existence but also against the person's
mental sanity. Rape leaves a lifelong mark on the victim's mind and the mind of
her family members. The court has no fixed outline about the establishment of
sexual relationships on the false promise of marriage, it is the discretion of
the court which depends on the facts and circumstances of the case.
The cases of rape
committed under the false pretext of marriage depends solely on the facts and
the consent, it plays a crucial role. Consent obtained without malafied
intention does not attract any charges, situating a sexual relationship does
not mean the person is bound to marry in any condition. If there is a bonafide
reason of not to marry then the person cannot be charged with the offence of
rape.
In the cases of malafied
intentions where the person has obtained consent but false promise of marriage
and has established the sexual relationship must be punished under section 376
of IPC. People like these are not suitable to be left in a society where they
can destroy lives. They must be prosecuted and punished as per the section 376
of IPC.
REFERENCES
-
Baxi,
Upendra. Abortion and the law in India. Journal of the Indian law Institute.
1986-87. Alice Jacob, New Delhi
-
The
Oxford Handbook of Ethical Theory" edited by David Copp
-
Indian
Penal Code" by Ratanlal & Dhirajlal
-
The
Ethics of Consent: Theory and Practice" edited by Franklin G. Miller and
Alan Wertheimer
-
Indian
Family Law" by Paras Diwan and Peeyushi Diwan
[1] 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.
[2] Deepak Gulati v. State of Haryana, AIR 2013 SC 2071.
[3] Section 90- Consent known to be given under fear of
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.
[4] Yedla Srinivasa Rao v State of A.P 2006 11 SC 615
[5] Uday v State of Karnataka 2003 4 SSC 46
[6] Deepak Gulati v. State of Haryana, AIR 2013 SC 2071.
[7] State of Uttar Pradesh v Naushad 2023 16 SSC 651
[8] Sachin @ Devendra Gajanand Sangray v State of Gujrat
Criminal Misc. no. 15688/2014
[9] Anurag Soni v State of Chattisgarh Criminal Appeal
No. 629/2019
Article Information
NAVIGATING CONSENT AND DECEPTION: A LEGAL AND ETHICAL ANALYSIS OF SEXUAL RELATIONS ON FALSE PROMISES OF MARRIAGE
Authors: RAHUL PATHANIA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/04
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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