Rape is defined by Section 375 of the Indian Penal Code, 1860 (hereinafter referred to as the IPC). The Section penalizes a man for all forms of non-consensual sexual contact and other non-consensual sexual penetration. One can infer from the provision that when dealing with rape cases, ‘consent’ plays an important role under Indian criminal law. This is the rationale behind penalizing a man for rape when he engages in sexual intercourse with a woman after acquiring her consent to the activity under the false pretext of marrying her.
Needless to say, if the intention of promising marriage is to deceive the woman into establishing sexual intercourse, it must be treated as against her will. However, the law is not very clear on the aspect and there is a lot of gray area in establishing what constitutes a ‘false promise’ and ‘valid consent.’ Therefore, this article aims to better understand the current jurisprudence on rape on the false pretext of marriage through the review of several case laws that established precedents on this matter.
WHAT DOES THE LAW SAY?
There is no specific provision or explanation in IPC that talks about sexual intercourse on the pretext of a false promise of marriage. However, the false promise of marriage for sex is considered a ‘misconception of fact’ within the meaning of Section 90 of IPC[1]. This means that the consent obtained on the false promise is not considered valid consent in the eyes of the law and is charged under Section 375 of the IPC.
- In the year 2007 in Pradeep Kumar v. State of Bihar[2], the Supreme Court held that the term ‘misconception of fact’ defined under Section 90 of IPC is broad enough to include all cases pertaining to misrepresentation of facts, deceit, fraud, etc, to which consent is given. Further, Section 3 of the Indian Evidence Act, of 1872 also provides for ‘intention’ to be treated as fact. Thus, if the intention of promising marriage is to deceive a female into establishing sexual intercourse, it will be treated as against her will.
- In Deelip Singh v. State of Bihar[3] in the year 2004, the Supreme Court held that consent taken from the prosecutrix would be vitiated if it was obtained on the pretext of a false promise of marriage by the accused. The Supreme Court of India recently affirmed the law and held that where the promise to marry is false and the intention of the accused at the time of making the promise was not to abide by it but to deceive the victim to obtain her consent for sexual intercourse, there is a misconception of fact within the meaning of Section 90 that vitiates the woman’s consent.
- Further, In the State of U.P. v. Naushad[4] in the year 2013, it was held that it is the duty of the defendant to establish the fact that consent was obtained with the bonafide intention and that it is not within the meaning of Section 90.
- More so, in Deepak Gulati v. State of Haryana[5], the apex court held that an accused can be convicted for the offence of rape under the penal provisions only if there is evidence to show that ‘the intention of the accused was malafide and that he has clandestine motives.’
- More recently, in 2019, in the case of Anurag Soni v. State of Chattisgarh[6], the Supreme Court observed that sexual intercourse on the false promise of marriage is also an offence under Section 417 of IPC which provides punishment for cheating. Thus, such consent shall not excuse the accused from the charges for the offence of rape under Section 375 of IPC.
Likewise, in Honayya v. State of Karnataka[7] in the year 2000, the Karnataka High Court considered false promises as fraud. It further held that a mere ‘breach of promise’ would not come under the ambit of ‘misconception of fact’ defined under Section 90 unless it is coupled with malafide intention. For example, in the case of Uday v. State of Karnataka[8] in the year 2003, the Supreme Court observed that the consent given by the victim to sexual intercourse with a person with whom she was deeply in love on a promise to marry her in the future, cannot be said to a misconception of fact under Section 90 of IPC i.e. the promise of marriage must be a false promise, given in bad faith and with no intention of being adhered to at the time it was given to constitute as rape.
Therefore, for almost two decades, the law has held that consenting to sexual activity based on a false promise to marry would be consent based on a ‘misconception of fact’ and, as a consequence, would not constitute valid consent under Section 90. In other terms, it is the same as rape. To summarize, the following elements must be satisfied in order to convict the accused of rape:
- It must be proven that the promise of marriage was false and that the accused had malice and no intention to keep the commitment.
- The woman's agreement to indulge in the sexual act was directly related to the false promise.
- It is clear that consent was obtained with the expectation that the accused would marry the victim.
- It must be demonstrated that the individual who obtained the consent was aware that it was the result of his false marriage promise.
WHAT IS THE PUNISHMENT?
The punishment for rape is detailed under Section 376 of the IPC. With the introduction of the Criminal Law (Amendment) Act of 2013, the minimum jail term for rape is increased from seven to ten years for an ordinary citizen. Anurag Soni v. State of Chhattisgarh, a case from 2019, involved the accused proposing to marry the victim when he already had other intentions to marry a different girl. He engaged in sexual activity with her on the falsified pretext of marriage. As the victim's consent was acquired under false pretences, it was deemed to be invalid. In accordance with IPC Section 376, the accused was found guilty of rape.
WHAT ARE THE DEFENCES AVAILABLE?
With live-in relationships becoming the norm, pre-marital sex is slowly ceasing to be taboo in India. Therefore, a more thorough approach is required to handle cases where the charges made by a female partner are unfounded. In these circumstances when evaluating the accused's level of guilt, the statutory provisions must be read broadly. There are conditions when the accused can avail for defence. In the case of Uday v. State of Karnataka, it was clear that the victim herself was aware of the marriage's improbability. The Court determined that her strong love for the accused led to her giving her consent to sexual intercourse. As a result, the accused was not found guilty of the rape crime. The victim in the Radhakrishan Meena case was a working, educated woman. She was forced to marry the accused, and they had a sexual relationship. However, it was emphasized that there was never any proof of the accused's malafide intention throughout the entire process. Therefore, it was determined that there was no offence and that the parties' sexual relationship was consensual. The Court had also stated that educated and powerful women were assumed to be fully aware of the consequences of premarital sex and to provide their consent in accordance with those consequences.
In conclusion, a breach of promise following the establishment of sexual relations does not, by itself, fall under the definition of rape as defined by Indian criminal law. The court's discretion is ultimately reliant on the merits of the facts and circumstances in the specific case when deciding the issue of rape on the grounds of a false promise to marriage due to the absence of testamentary guidelines. That is to say, there is no hard-and-fast rule for determining if the victim's consent to sexual intercourse was granted under false pretense, as was noted in Uday v. State of Karnataka. To come to a decision, the Court must therefore weigh the available evidence and the relevant context. Moreover, it is clear from the statistics that while the percentage of rape cases committed under the guise of a false marriage has decreased, the number of such cases has climbed. The substantive rape laws currently in effect are insufficient to address situations of rape by deception. It is necessary to upgrade the law in order to cover all deception methods where malafide consent is obtained. On the other hand, it should be mentioned that many innocent girls would face oppression if the law does not incriminate the accused who had coerced the victim into engaging in sexual activity under the guise of false marriage.
[1] https://indiankanoon.org/doc/1742535/
[2] https://indiankanoon.org/doc/961612/
[3] https://indiankanoon.org/doc/1181992/
[4] https://indiankanoon.org/doc/113414998/
[5] https://indiankanoon.org/doc/12623793/
[6] https://indiankanoon.org/doc/110473731/
[7] https://indiankanoon.org/doc/1873454/
[8] https://indiankanoon.org/doc/1100330/
