Consent or Conspiracy? Unraveling the Legal Dilemma of Promise and Betrayal

Abstract

The legal ambiguity surrounding rape based on a promise of marriage creates a contradiction with justice, medical jurisprudence, and social reality. The definition of rape only occurs when a person is forced to have physical intercourse without their consent. Proving a consensual relationship based on a promise of marriage as rape is difficult due to forensic challenges, evidence complications, and the law’s unilateral application against men. This ambiguity is pushing people towards legal contracts or affidavits in personal relationships, creating distrust in society. The amended Nari O Shishu Nirjatan Daman Ain 2000 has increased the punishment for rape under the pretext of marriage to seven years, which is never reasonable.

Keywords: What is the definition of rape? How does a consensual relationship constitute rape? Is consent based on fraud invalid? How is proof of fraud possible? What is the free consent? Is the law one-sided? The burden of Proof on Allegation of Fraud.

Introduction

Rape is defined as a crime in which physical intercourse is performed without the consent of the victim or by force against her. However, in some cases, consensual sexual intercourse may also be considered rape, if the complainant can prove that her consent was obtained fraudulently. In particular, in many countries, including Bangladesh, “rape by deception” has a legal basis, where a rape case can be filed if the promise is broken. However, important questions arise regarding the interpretation and application of this law, which need to be reviewed from both legal and practical perspectives.

What is the definition of rape?

Section 375 of the Penal Code defines rape. It states that if a man has physical intercourse with a woman in any of the five circumstances specified in the law, it will be considered rape.

The first of these is having physical intercourse against the woman’s will.

The second is obtaining consent to have physical intercourse against the woman’s consent or by threatening her with death or injury.

However, if a woman is under 16 years of age, her consent will be considered rape whether or not it is obtained.

If a woman mistakenly consents to physical intercourse with a man thinking that he is her legal husband, and the man knows that he is not her husband, such physical intercourse will also be considered rape in the eyes of the law[1].

How does a consensual relationship constitute rape?

If a relationship is voluntary and there is no coercion, why is it considered rape? Legally, consent means that both parties have knowingly engaged in physical intercourse, which is difficult to prove through forensic or evidentiary evidence as rape.

However, there is a debate:

• If a woman consents on the basis that she will be married, but later breaks that promise, is she being cheated on?
• Or, did both parties have the freedom to make their own decisions during the relationship and have the right to change their decisions later?

The answers to these questions are difficult to determine judicially because the legal distinction between consent and cheating is not clear.

Is consent based on fraud invalid?

According to the law, if someone’s consent is obtained by giving false information, then that consent can be invalid. However, to establish a charge of rape based on fraud, the nature and purpose of the fraud must be clear.

If a man deliberately lures a woman with a false promise of marriage and his goal is only to establish physical relations, then this can be fraud.

However, here is the legal weakness:

1. When will a promise be considered fraud?
2. Did the man really want to get married during the relationship but later changed his mind?
3. Or was there an intention to deceive from the beginning?
4. How can the judge be sure that the promise was made only for physical relations?
5. If the promise of marriage is considered fraud, will the same law apply to other broken promises?
6. Is it a criminal offense to deceive by promising a job?
7. Is the same punishment for not keeping a business promise?

To maintain consistency of law, the criteria for invalidating consent based on fraud should apply equally to all cases.

How is proof of fraud possible?

In order to establish a crime in a legal trial, it must be proven beyond reasonable doubt. In rape, physical injuries, signs of force, medical reports, and direct and indirect testimony usually play an important role. But what kind of evidence will be admissible in the case of rape by deception in the promise of marriage?

1. Proof of promise:

• What kind of promise was made?
• Was it written or recorded, or only verbal?
• Can witnesses confirm that the promise was made at all?

1. Role of witness:

• Who will the witness testify to?
• Can someone simply testify by “hearing”?
• Or does he have to witness the personal relationship between the two?

Is the law one-sided?

This law Nari O Shishu Nirjatan Daman Ain 2000 is generally used against men, not against women. But in reality, women can also cheat in relationships, with the current arranged marriage, the maximum punishment for rape is 7 years, this law will be a tool for more cheating and men will be deprived of justice. Let’s see how it will happen,

• If a woman assures a man that she will marry in the future, but later the woman herself does not marry and files a case of reverse rape, will that man be accused of rape? Where is the opportunity for this man to prove it? And even if it is proven that the man is not at fault, what is the punishment for that woman?
• If a woman takes financial benefits in a relationship and later breaks off the relationship, will it be considered a case of cheating? Do women not take the benefits? Where is this provision in the law?

Currently, this law is used unilaterally to blame men, which creates discrimination based on the law.

What is the Free Consent?

Under Section 14 of the Contract Act 1872 free consent is defined

Consent is said to be free when it is not caused by

(1) coercion, as defined in section 15, or

(2) undue influence, as defined in section 16,or

(3) fraud, as defined in section 17, or

(4) misrepresentation, as defined in section 18, or

(5) mistake, subject to the provisions of sections 20, 21 and 22.

Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation, or mistake.

If the woman consents voluntarily, it is difficult to prove fraud (The Burden of Proof on Allegation of Fraud)

According to Section 14 of the Contract Act, of 1872, free consent exists only if it is not influenced by coercion, fraud, undue influence, or misrepresentation[2].

Suppose a woman voluntarily, with full knowledge and intelligence, consents to enter into a relationship and there is no fraud or coercion. In that case, it will be free consent in the legal sense.

Have we noticed what is happening in society today? 90% of women, men, young men, young women, teenagers, and even children are getting involved in love relationships. Which they do completely with their free consent. Although the free consent of children is questionable, there is no room for adults to not call this relationship free consent. During this relationship, 99% of couples in love have physical relations with the consent of both, there is usually no commitment here. If they do not get married later for some reason, will that physical relationship be rape for the girl? If a woman cheats and denies her consent and files a rape case against a man to settle a personal grudge, how will the court prove that it is not rape but consensual physical intercourse?

According to Sections 415 and 420 of the Penal Code, 1860, cheating will be proved only if it is shown that the accused had promised to cheat from the beginning. But if the relationship was based on mutual consent, and there was no subsequent marriage, then it will be difficult to call it cheating.

Definition and Exceptions of Rape (Penal Code, 1860 – Section 375 & 376)

According to Section 375 of the Penal Code, 1860, rape is applicable only if the sexual intercourse is forced or induced by fraud. But if the woman consents without being aware and without being forced, then it does not fall within the definition of rape.

Judgment of the Supreme Court of India

Uday v. State of Karnataka, (2003) 4 SCC 46

In this case, the Supreme Court of India ruled that—

“If a woman is of age and has sexual intercourse with her consent, then it will not be considered rape merely because she is not married[3].”

Impact of the amendment to the law

The amendment to the law should have clearly defined consent, the definition of fraud and the moral and social reality. It should have highlighted the issues related to the provision, such as the admissibility of a case based on “promise of marriage” only if it was given with the intention of fraud and there was strong evidence to prove it. This would have reduced unnecessary litigation in the courts and made the law more transparent and fair.

Furthermore, physical relations between consenting adults are legally permissible, but religiously prohibited, if it is to be stopped, it is possible to establish justice if both are punished by religious consideration as zina, adultery. However, unless intentional fraud is proven, it is unlikely to be considered a crime. If the court finds the accusation of fraud or rape to be false, then appropriate punishment would be provided against the person who made the false accusation. This would have reduced false cases and ensured justice for the real victims.

Author Md. Rokibul Islam Is a Student, Department of Law, Dhaka International University.

[1]Section 375 of the Penal Code

[2]Section 14 of the Contract Act, of 1872

[3]Uday v. State of Karnataka, (2003) 4 SCC 46