Does sexual intercourse on false promise of marriage always amount to Rape?
Md. Rahul Hasan Joy:
Rape as a clearly stipulated offence was first introduced in Penal Code in 1860. Section 375 of The Penal Code,1860 stipulates five descriptions for the offence of rape. These are as follows-
- Against her will.
- Without her consent.
- 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.
- 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.
- With or without her consent,when she is under fourteen years of age.
It’s worth mentioning that section 375 has also provided an exception which provides that, sexual intercourse on sexual acts by a man with his own wife,the wife not being under thirteen years of age,is not rape.
Section 376 provided for seven years of jail term to life imprisonment to whoever commits the offence of rape as is codified in section 375 of Penal Code,1860.
Rape is a very heinous crime in our society. It is a very cruel and degrading act which violates women’s and girl’s basic human rights to choice, liberty and security. If any person who intentionally commits this act will no doubt face stiff penalty. But in some peculiar cases it is often seen that a man has a consensual sex with a woman based on love and passion in between them and promise to marry that woman in the future and failing of which subsequently charges the man of raping that woman. As these kinds of incidents started with love and affection on the basis of which they enter into a sexual relationship and when the relationship no longer does exist, charges of Rape and Deception may be brought against the man.
Now there arises a critical question that,”Does sex on the promise of marriage always amount to rape as is defined under section 375 of penal Code?”
The Indian Courts have been challenged many times with this question whether sex on promise of marriage constitutes rape or not. In 2014, Indian leading newspaper The Hindu did a series on rape cases pending in the Delhi Trial Courts. It had undertaken the task of analysing pending rape cases over a period of six months.This included interviewing various people involved in the process, including judges etc. At the end of the survey a surprising fact had come out that all the cases which had been fully tried, ” over 40% dealt with consensual sex, usually involving the elopement of a young couple and the girl’s parents subsequently charging the boy with rape. Another 25% dealt with breach of promise to marry.”
Honourable Justices D Y Chandrachud and Indira Banerjee in the case “Pramoud Suryabhan pawar V The State of Maharashtra & Anr. ” (Criminal Appeal No. 1165 of 2019), clearly acknowledged that, sex on promise of marriage doesn’t always amount to rape citing a distinction between 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. From this verdict it is evident that, there is a clear distinction made in between false promise and breach of promise and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motive, and had made a false promise to this effect only to satisfy his lust. If it is proved beyond reasonable doubt that the accused had clandestine motive and had no intention to marry the victim, sexual intercourse based on such promise of marriage constitutes an offence of rape as the consent was obtained by cheating or deception. But if, after carefully examining all the relevent evidences,it is proved beyond reasonable doubt that the accused who really wanted to marry the victim on a certain date and due to some unavoidable circumstances he was unable to do so despite having bona fide motive in his contemplation, sexual intercourse based on this mere breach of promise will not constitute an offence of rape.
This view was also clearly accepted in an another case “Anurag Soni V State of Chhattisgarh “ (2019 SCC Online SC 509), it is unequivocally stated in the verdict that, the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per section 90 of the Indian Penal Code, 1860 and in such a case, such a consent would not exculpate the offender and such an offender can be said to have committed the rape as defined under section 375 of the IPC and can be convicted under section 376 of the IPC.
Similar observation was also made in the case “Deepak Gulati V State of Haryana” (2013,7 SCC 675), where the court had come to a conclusion that, in a case like this, distinction in between the false promise having mala fide motive and breach of promise having bona fide motive must be treated differently.
But, On 21 May 2020, a judgement was passed in the case “G. Achyut Kumar V State of Odisha” ( Criminal Appeal No. 940 of 2019) by the Honourable High Court of Orissa observing that sex on false promise of marriage doesn’t constitute rape. In this case, honourable Justice SK Panigrahi while granting bail to the accused who was charged of raping the victim stated that, ” The rape law often fails to capture their plight. The Law is well settled that consent obtained on a false promise to marry is not a valid consent. Since the framers of the law have specially provided the circumstances when ‘consent’ amounts to ‘no consent’ in terms of section 375 of IPC, consent for the sexual act on the pretext of marriage is not one of the circumstances mentioned under section 375 of IPC. Hence, the automatic extension of provisions of section 90 of IPC to determine the effect of consent under section 375 deserves a serious relook. The Law holding that false promise to marriage amounts to rape appears to be erroneous.”
In this case, Honourable Justice SK Panigrahi raises questions for reforming statutory rape laws on this matter, i;e, sex on false promise of marriage amounts to rape under section 375 of IPC . Honourable Justice possesess this view that It’s erroneous to consider sex on false promise of marriage an offence as it doesn’t fall under any of the descriptions codified in section 375 of IPC. Hence awarding punishment to the accused for this act will certainly be an ultra vires to the recognised criminal law.
In Bangladesh, in case of “Manwar Malik V The State” The Honourable Supreme Court of Bangladesh held that, if an accused makes a sexual intercourse with a girl above the age of 16 years with her consent after having promised to marry her, he will not be held convicted under section 375 of The Penal Code. Though this is a socially condemnable act but the Supreme Court held that it doesn’t constitute an offence of rape which fall under the ambit of section 375 of Penal Code.
In an another case, “Lukus Mia V State” (43 DLR 230), The Apex Court of Bangladesh held that, the victim of the alleged cohabitation knew the fact that there were no marriage between her and the accused and that the accused comprised to marry her on some future date,such allegation made in First Information Report did not come within the purview of section 493 of Penal Code nor can be considered as constituting an offence of Rape.
In conclusion, it is needless to say that, Rape is a crime against society, it is a serious blot on the victim’s life. Culprits who commit this act must be brought to book. But at the same time we must realise and keep notice of fact that there is a distinction in between rape and consensual sex. If any consensual sex,for example: sex on promise of marriage is called in question, circumstances must be carefully examined and treated differently and if the court finds that accused had bad intentions and made false promise to the victim so as to satisfy his lust, he must be convicted and if the accused had good intention but due to some unavoidable circumstances he made a breach of that promise, he must be made free considering all other aspects and in cases like this,Courts must apply judicial mind to reach its decision and failing of which may otherwise lead to the miscarriage of Justice.
Md. Rahul Hasan Joy : Student of (B.A.LL.B) Honours, Faculty of Law, The Aligarh Muslim University, India.
