Sex on the False Promise of Marriage does not amount to Rape
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This Blog is written by Geetanjali Sharma from University of Petroleum and Energy Studies, Dehradun. Edited by Karan Dutt.
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INTRODUCTION
If the consent was acquired by a false promise of marriage within the meaning of Section 375 of the Indian Penal Code, 1860, whether sexual intercourse with the women amounted to rape. In India, rape was considered a crime, and those who committed it were punished. Marriage is seen as a holy bond between two individuals. It is more than just a sexual relationship; it also includes emotional and spiritual intimacy between partners. Taking permission for sexual intercourse under the guise of a false promise of marriage, on the other hand, would be considered rape and prosecuted under the relevant section of the Indian Penal Code. Some “men’s rights activists” argue that the allegations levelled against the accused should be considered as “fake rape cases,” because they are intended to establish the accused’s guilt. However, a number of campaigners feel that these incidents should be prosecuted since they jeopardized women’s positions in patriarchal societies.
This false promise of marriage in order to acquire consent for sexual intercourse is classified as a “misconception of fact” under Section 90 of the Indian Penal Code, 1860. As a result, it would be prosecuted under Section 375 of the IPC since it is not regarded a legitimate consent in the eyes of the law. The second explanation of Section 375 of the IPC states that rape is punishable if sexual intercourse is carried out without the permission of the victims. Indian courts, on the other hand, have begun to take a different approach to Section 375, interpreting the phrase “consent” in a broader sense. Several court decisions have construed “consent” in ways that go against basic statutory interpretation principles.
In some circumstances, courts have ruled that if a man fails to marry a woman after making a commitment, he cannot be punished under Section 375. To hold an accused guilty under Section 375 of the IPC, careful interpretation of legislation is required. However, the law is clear that making a false promise to marry constitutes rape and is punishable under Section 375. To declare a person guilty of rape, the requirements of Section 375 of the IPC have to be construed in a broader sense.
POSITION IN INDIA
In India, the legal stance on “sexual intercourse under false promise of marriage” is unclear. In India’s existing legal system, there are several inconsistencies. In this regard, the Indian judiciary has issued a number of conflicting decisions. A stringent reading of Section 375 IPC, on the other hand, maintains that sexual intercourse with a woman without her permission constitutes rape. As a result, there is a need for legislation to be amended to clearly define the aspect of ‘sexual intercourse with the prosecutrix under the guise of a false promise of marriage,’ as the law on this subject currently lacks various provisions for the conviction of the accused in such cases, resulting in his acquittal from the charges of rape.
The legal provisions and many decisions rendered in Favour of the law by Indian courts are incorrect, and they undermine the objective of the criminal laws established in the Indian Penal Code, 1860. As a result, obtaining permission from the victim by making a false promise of marriage does not constitute rape under Section 375 and is not punished under the law.
The definition of the phrase “consent” is crucial in determining whether or not an accused person is guilty of rape. Under the rules of the IPC, consent might be implicit or stated, freely or compelled, and gained by deception or fraud. Consent may be described as a deliberate act of reason that balances the good and bad on both sides. According to Section 90 of the Indian Penal Code, 1860, permission is not valid if it is provided out of fear of harm or a misunderstanding of the facts, or if the person acting has cause to think the consent was gained out of fear or a misunderstanding of the facts.
Despite the fact that the concept of consent was supplied through the Amendment of 2013, Indian courts have assumed that Section 90 IPC is highly important when it comes to the interpretation of Section 375 IPC. It should be emphasized that Section 90 might be interpreted in conjunction with Section 375 to convict an accused person. As a result, if a person engages in sexual activity with the aim to deceive the prosecutrix on the false promise of marriage, it will be deemed “without her permission” under the second explanation of Section 375, and the accused will be prosecuted under Section 376 IPC.
Section 90 of the IPC covers every element of the term ‘consent.’ It should be emphasized that the accused obtained the prosecutrix’s agreement under the guise of a fraudulent promise of marriage. As a result, the victim’s permission provided under the influence of a misunderstanding of the facts would be considered rape under Section 375 of the IPC. However, Section 90 of the IPC does not define consent, instead stating “what is not consent.” The question of whether the victim’s consent was present or not would be determined by the courts based on all of the relevant facts and circumstances of the case.
The prosecution must establish beyond a reasonable doubt in a court of law that the accused never planned to marry her and began sexual attempts with her without the purpose of marrying her. In certain situations, it is clear that the defendant had no intention of marrying the prosecutrix from the start. As a result, a promise made with regard to future uncertainty, and based on facts not addressed in the prosecution’s evidence, may not necessarily fall within the scope of the criminal law’s mistake of fact. On several cases, it has been stated that the accused had a “clear purpose” from the start not to marry the victim. As a result, sexual intercourse that is conducted under utter misunderstanding cannot be considered consent.
In the case of Jayanti Rani Panda v. State of West Bengal & Anr.[1] (1984), the Calcutta High Court decided that the fact revealed by the prosecution must have direct and immediate significance in order to invoke misunderstanding of fact under Section 90 of the IPC. The court went on to say that if a fully grown-up girl consented to sexual intercourse under the guise of a false promise of marriage and continues to do so under the same guise, it is deemed an act of “promiscuity” on her behalf. The court determined that it is not an act of misrepresentation of facts, and that Section 90 of the IPC cannot be used to such conduct unless the court is satisfied that the accused never meant to marry the prosecutrix from the start. As a result, the court determines that it varies from case to case based on facts and circumstances, with the accused’s purpose playing a significant role in such situations.
ANALYSIS
Section 375 of the Penal Code is a comprehensive provision: The provisions of the criminal code are quite comprehensive, necessitating a careful interpretation of the laws in order to obtain a definitive judgement. The courts must apply a rigorous interpretation to these rules, and the offence should not be given a new meaning. Section 375 of the Criminal Code lists six reasons for the crime of rape. Each explanation is unique from the others in terms of meaning.
The term ‘secondarily’ includes the crime of rape if it is done without the victim’s permission. As a result, this explanation focuses on the aspects of express and implicit permission rather than the nature of consent and its vitiation. As a result, we might conclude that permission as defined by Section 90 of the IPC could not be included within the meaning of Section 375’s explanation “secondly.”
A specific panel provision cannot be overridden by Section 90 of the IPC: The consequences of particular provisions contained in the Penal Code cannot be overridden by Section 90 IPC, which is typically utilized in general exceptions. As a result, Section 90 cannot be applied to Section 375, which explicitly allows for vitiated consent. The descriptions ‘thirdly’ and ‘fourthly’ discuss circumstances in which consent is regarded void and not recognized within the meaning of Section 375. Furthermore, the modification under Section 375 defines the term “consent.”
The restricted extent of a factual misunderstanding: it is widely established in law that consent is void only when the victim is uninformed of the accused’s behavior. The prosecutrix is well aware of the facts and circumstances surrounding the crime in the instance of a fraudulent promise of marriage. Because of a false vow to marry the prosecutrix, the interpretation of the sexual act cannot be altered. It’s possible that the victim is motivated by such an act, but her logical thinking and comprehension of the act remain unchanged. The word “misconception of fact” should be used in a specific context. As a result, the aforementioned act does not fall under the definition of a misstatement of fact as specified by Section 90 of the IPC. Beyond a reasonable doubt: include sexual intercourse on a false promise to marry in the definition of rape is incorrect, and proving it beyond a reasonable doubt in a court of law is nearly difficult. In the context of Section 375, determining the true intentions of the accused is extremely challenging. In situations of fraudulent promises to marriage, the presumptions under the Indian Evidence Act are also abused. As a result, it raises concerns regarding the constitutionality of the law.
CASE LAWS
The Calcutta High Court decided in Hari Majhi v. State of West Bengal [2](1990) and Abhoy Pradhan v. State of West Bengal[3] (1999) that the word “misconception of fact” must be interpreted strictly and that both instances concern simply a breach of contract, not a fraudulent promise to marry. As a result, it is exempt from the provisions of Section 90.
The Karnataka High Court held in Honayya v. State of Karnataka[4] (2000) that simple “breach of promise” would not fall under the definition of “misconception of fact” under Section 90 of the IPC. As a result, the court determined that sexual intercourse obtained with the promise of marriage, which was afterwards broken by the accused, did not constitute rape under Section 375 IPC. The court, however, did not specifically decide that a fraudulent promise to marry did not fall within the category of “misconception of fact,” and instead classified the false promise as a fraud. It was also decided that a limited number of cases fit within the definition of rape if the victim’s agreement was acquired under the influence of deception. It is necessary to prove that the accused individual deceived the victim into having sexual relations with him.
In the case of Uday v. State of Karnataka (2003), the Supreme Court held that the victim’s consent to sexual intercourse with a person with whom she is deeply in love on the condition of a promise to marry her in the future cannot be considered a misstatement of fact under Section 90 of the IPC, and thus the accused will not be convicted of rape under Section 375. As a result, the court narrowed the scope of Section 90, ruling that sexual intercourse based on a vow to marry would not be covered by Section 375. The court refused to provide a methodology for evaluating whether the victim’s agreement to sexual intercourse was provided voluntarily or under the influence of a misunderstanding of the facts. It is thought that when the accused made a fraudulent promise of marriage that caused injury to the victim’s “body, mind, property, and reputation,” the act of cheating would be punished under Section 415 of the Indian Penal Code. Under civil law, such an act might be prosecuted.
In G. Achyut Kumar v. State of Odisha (2020), the Orissa High Court decided that “if a person participates in intercourse on a false promise of marriage, it does not constitute rape within the meaning of Section 375 of the IPC.” The court pointed out that the legislation expressly states that “consent” in the context of Section 375 of the IPC means “no consent,” and that “consent on false promise to marry” is not included within the meaning of Section 375. As a result, extending Section 90 to include rape as a crime is unconstitutional in the eyes of the law, and it has to be revisited.
CONCLUSION
Rape is the most physically and morally repulsive crime in society, and it has a long-term psychological impact on victims. It should be mentioned that the victim’s family suffers as a result of this horrible conduct in society. The victim is subjected to a wide range of emotional and physical pain. “Rape transforms a woman to an animal because it shakes the very core of her life.” In a situation where the accused had sexual intercourse with the prosecutrix under the guise of a fraudulent vow to marry, the criminal laws make it illegal.
The accused made a false promise of marriage with the mala fide aim of deceiving the victim on several occasions, resulting in deplorable conditions for women in society, since many girls are exploited by the fake promise of marriage. These cases are rising every day because the accused person feels that the law is on their side and that they can easily get away with their crime because the Indian Penal Code, 1860, has no explicit provision. As a result, the government must establish a particular legislative framework to address situations in which the accused gained consent for sexual intercourse under the false promise of marriage.
As a result, the court should examine this while considering the case of sexual intercourse based on a fraudulent promise to marry. The court must not provide permission to individuals who are attempting to exploit young girls by having sexual relations with them under the guise of a false promise of marriage. As a result, the accused should be charged with rape under Section 376 of the Indian Penal Code.
REFERENCES
(1) https://blog.ipleaders.in/sexual-intercourse-pretext-false-promise-marriage-amounts-rape/
(2) https://thedailyguardian.com/sex-on-the-false-promise-of-marriage-is-it-rape-or-not/
In-text Citations:
[1] 1984 CriLJ 1535.
[2] 1990 CriLJ 650.
[3] 1999 CriLJ 3534.
[4] ILR 2000 KAR 3336, 2000 (5) KarLJ 57.