Promise to Marry, Consent and Offences of Rape – Analysing Judicial Trend

(A) INTRODUCTION

Rape is an attack on bodily integrity, autonomy and identity of women as human being. Rape is heinous crime and severe punishment including death sentences is prescribed in Penal Code. The law related to rape in India is evolving with passage of time. Major development took place several times in shaping of law related to Rape in India. Mathura Rape Case and another Nirbhaya Case was major incident for rethinking whole jurisprudence related to offences of Rape.

Indian Penal Code emphasise on two things while defining what constitutes rape, one is Will and another is consent. Consensual sex can be defined as sexual inter-course between the parties, where both of them agrees to do so. Rape occurs when a man forcefully has sexual relations with a woman against her will and without her consent.

Establishing sexual relations in the pretext of Promise to marry and subsequently violating such promise and filling cases of rape against violator of promise is major area concern to think on jurisprudence of law related to rape. Major problem arises in these cases are proving will and consent and establishing promise was false promise. The Courts are dealing with such type cases after looking at facts and circumstances of each cases.

(B) STATUTORY PROVISIONS RELATED TO CONSENT

Section 375 of the IPC, 1860 defines “rape“. Clauses (a) to (d) gives a list of actions which amount to rape under the circumstances falling under the seven descriptions following the aforesaid clauses.

The second description reads as under –

“Secondly – Without her consent.”

Explanation 2 provides that consent means an unequivocal voluntary agreement when the woman by words, gesture or any form or verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.

The proviso to Explanation 2 provides 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.

On the perusal of the above section it seems clear that acts would amount to rape if committed without consent of woman.

In the case of physical act establshied with the consent of woman on the promise to marry and subsequent breach of promise comes under the consent given under the fear or misconception.

Section 90 of the IPC provides for consent given under misconception. It reads as under:

“90. Consent known to be given under fear or misconception. – A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under 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; …”

In other words, consent given under a misconception of fact is no consent. Thus, the question which often arises in the kind of matters referred to hereinbefore is whether a promise to marry, which is not fulfilled subsequently, upon which consent is given by a woman to enter into a sexual relationship with a man, would amount to a “misrepresentation of fact”. If it does, such consent is a nullity and the man is guilty of having committed rape upon the woman; if it does not, then the offence of rape is not made out.

In 2013 the amendment made in the Evidence Act. Section 114A was introduced and the presumption has been raised as to the absence of consent in certain prosecutions for rape.

Section 114A reads as under – Presumption as to absence of consent in certain prosecutions for rape:  In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of subsection (2) of Section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.

If sexual intercourse has been committed by the accused and if it is proved that it was without the consent of the prosecutrix and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.

(C) WHETHER FALSE PROMISE TO MARRIAGE CONSTITUTES RAPE?

The Promise to marry, Consent and Physical Relationship are three important components of Offences of rape in the pretext of false promise to marry.

In such cases two important issues arises –

(1) Whether promise to marry was genuine or false?

(2) Whether consent was free consent or obtained by fraud or misconception?

At present no clear jurisprudence is present to deal with such situations. The courts are dealing with such cases on examining facts and circumstances of each cases.

The Supreme Court and High Courts have delivered some judgement on the issue. In the some cases accused were convicted and some case accused acquitted or FIR/ Chargesheet were quashed.

(1) WHETHER PROMISE TO MARRY WAS GENUINE OR FALSE?

In Yedla Srinivasa Rao vs State Of A.P (2006)1 The question before court for consideration is that when the accused committed sexual intercourse with the prosecutrix holding out a promise for marriage whether this will amount to a consent or not?

Accused committed forcible sexual intercourse with victim against her will and consent. When she protested as to why he spoiled her life, accused promised that he would marry her. When she became pregnant she informed the accused and he gave tablets for abortion in order to get rid of pregnancy which did not work. Thereafter, the matter was reported to the Panchayat. The accused accepted the guilt and promised to marry the victim but subsequently, he absconded from the village.

The court held that in the present case in view of the facts the consent which had been obtained by the accused was not a voluntary one which was given by her under misconception of fact that the accused would marry her but this is not a consent in law. Therefore the court upheld conviction awarded to appellant.

In the case of State of U.P. Vs. Naushad (2013)2 court held that sexual intercourse by a man with a woman without her consent will constitute the offence of rape.

In the recent case Anurag Soni Vs State of Chhatisgarh (2019)3, despite refusal of the prosecutrix accused established physical relation with her on the pretext of marrying her. After that the accused had refused to marry prosecutrix and performed marriage with another girl.

The court observed that from the very inception the accused had no intention to marry the victim and that he had mala-fide motives and had made false promise only to satisfy the lust. But for the false promise by the accused to marry the victim, the victim would not have given the consent to have the physical relationship. It is a clear case of cheating and deception. The consent given by the victim on misconception of fact.

(2) WHETHER CONSENT WAS FREE CONSENT OR OBTAINED BY FRAUD OR MISCONCEPTION?

In Uday v. State of Karnataka (2003)4, appellant was convicted under Section 376 of the IPC. The Sessions Judge as well as the Karnataka High Court had concurrently held that though the proscutrix had consented to sexual intercourse with the appellant, the consent was obtained by fraud and deception inasmuch as the appellant induced her to consent on the promise that he shall marry her. It was under such misconception that for several months thereafter the prosecutrix, who claimed to be deeply in love with the accused, continued to have sexual intercourse with him till it was discovered that she was pregnant. When the appellant did not agree to the performance of the marriage, at that stage, the complainant lodged a report in the police station.

In the context of Section 90, the Supreme Court observed that two conditions must be fulfilled for its application. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception.

The court observed that the prosecutrix was a grown up girl studying in a college; and was deeply in love with the appellant. It also noticed that she was aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admitted having told so to the appellant when he proposed to her the first time. The Court observed that the prosecutrix had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. She freely exercised a choice between resistance and assent and must have known its consequences. Furthermore, the Court observed that it had serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. Ultimately, the Court allowed the appeal and set aside the order of conviction.

In Pramod Suryabhan Pawar Vs. State of Maharashtra (2019)5, appeal preferred against order of High Court rejection of petition to quash FIR registered under Sections 376, 417, 504 and 506(2) of the IPC and SCST Act.

In this case primary contention advanced by the complainant is that the appellant engaged in sexual relations with her on the false promise of marrying her, and therefore her “consent”, being premised on a “misconception of fact” (the promise to marry), stands vitiated. (Para 11)

In the present case, the “misconception of fact” alleged by the complainant is the appellant’s promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. (Para 14)

Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it  but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent”.  On the other hand, a breach of a promise cannot be said to be a false promise.  To establish a false promise, the maker of the  promise  should  have  had  no  intention  of  upholding  his  word  at  the  time  of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a  “misconception  of  fact”  where  such  misconception  was  the  basis  for  her choosing to engage in the said act. (Para 16)

The court observed that To  establish  whether  the “consent”  was  vitiated  by  a  “misconception  of  fact”  arising  out  of  a  promise  to marry,  two  propositions  must  be  established.   The promise  of  marriage  must have  been  a  false  promise,  given  in  bad  faith  and  with  no  intention  of  being adhered to at the time it was given. The false promise itself must be of immediate relevance,  or  bear  a  direct  nexus  to  the  woman’s  decision  to  engage  in  the sexual act.

The court held that appellant’s failure to fulfil his promise made cannot be construed to mean the promise itself was false. The court allow the appeal and set aside the impugned judgement and order of the High Court and FIR quashed.

(3) CONSENT IN THE CASE OF MARRIED WOMAN WILLFULLY COHABITING WITH ANOTHER MAN

In recent case before Kerala High Court in Tino Thankachan Vs State of Kerala (2022)6, accused filed petition under Section 482 CrPC for quashing of proceedings. In this case consensual sexual intercourse took place between petitioner and 2nd respondent. According to the 2nd respondent, she consented to sex on the promise given by the petitioner that he would marry her. Admittedly, the 2nd respondent is a married woman. She was separated from her husband, but divorce proceedings were going on.

It is settled that, if a man retracts his promise to marry a woman, consensual sex they had would not constitute an offence under Section 376 of IPC unless it is established that consent for such sexual act was obtained by him, by giving false promise of marriage with no intention of being adhered to and that promise made was false to his knowledge.

The court held that the promise alleged to have been made by the accused to a married woman that he could marry her is a promise which is not enforceable in law. Such an unenforceable and illegal promise cannot be a basis for the prosecution under Section 376 of IPC. Here, no question of promise to marry arise, since, the victim is a married woman and she knew that legal marriage with the petitioner was not possible under the law.

The Court is of the view that the basic ingredients of Section 376 of IPC are not attracted and ultimately application for quashing allowed.

(D) CONCLUSION

After analysing the statutes and authoritative pronouncement of the Apex court and different High Courts, there is no concrete conclusion arises on the present issue. The Courts are dealing with such type cases after looking at facts and circumstances of each cases.

There are two different views are taken by the courts, one is Consensual Sexual Relationship and another is sexual relationship without consent or consent under fear of misconception. In the first view no offences attracted and in the second view offences of rape is attracted and is punishable under IPC.

The promise to marry and its subsequent breach is not an offence unless it is established that consent for such sexual act was obtained by him, by giving false promise of marriage with no intention of being adhered to and that promise made was false to his knowledge.

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1. Yedla Srinivasa Rao Vs. State of A.P, (2006) 11 SCC 615
2. State of U.P. Vs. Naushad, (2013) 16 SCC 651
3. Anurag Soni Vs State of Chhatisgarh in Criminal Appeal No. 629 of 2019 (arising out of SLP (Criminal) No. 618/2019)
4. Uday v. State of Karnataka (2003) 4 SCC 46
5. Pramod Suryabhan Pawar Vs. State of Maharashtra in Criminal Appeal No.  1165  of 2019 (arising out of SLP (Crl) No. 2712 of 2019)
6. Tino Thankachan Vs State of Kerala in CRL.MC NO. 1819 of 2019; 22 Nov 2022