DELIBERATE CONSENT & NO CONSENT IN CASES OF SEXUAL INTERCOURSE ON PROMISE OF MARRIAGE

This article has been written by Aishwarya Mehta & Kaustubh Bajpayee students at

Maharashtra National Law University, Nagpur




INTRODUCTION


Section 375 IPC defines certain Sexual acts when committed against any female, under any circumstances mentioned under Section 375 IPC will amount to Rape. The objective of this article is to establish the fact that consent given for Sexual intercourse on a false promise of marriage amounts to “No Consent”. IPC has not mentioned any express provision regarding consent obtained on false promise to marry. Section 375 of IPC read with Section 90 IPC makes it explicitly clear that Consent obtained under fear of injury, or under any misconception of fact is not free consent.



CHEATING IS DIFFERENT FROM BREACH OF PROMISE/CONTRACT


Under Section 420 IPC, Cheating has been defined as an act done by a person either dishonestly or unfairly in order to gain an advantage over the other person . Moreover, false promise to marry also amounts to cheating and rape under Section 375 of IPC. But there lies a difference between cheating and Breach of Contact which has been cleared by the Apex Court in ARCI v. Nirma Cerglass Technics (P) Ltd.. the Court held that the offence of breach of contract and cheating, both depends upon the intention of the wrongdoer at the time of alleged inducement. The offence of Cheating can be established only after it is proved that the intention of the accused is fraudulent at the time when the accused made a false promise and entered into a contract with the complainant in order to gain an advantage of his property or money, then it can be held that the liability of accused is criminal and he is guilty for committing the offence of cheating under Section 420 of IPC. However, if it the intention of accused is not proved then there arises no criminal liability on the part of accused. Although complainant can sue the other person for breach of contract in a civil court. Therefore, it can be said that mere breach of contract cannot make a person guilty for criminal offence unless dishonest intention is seen at the commencement of the agreement.

Similarly, in S.W. Palanitkar v. State of Bihar, the Apex Court held that the criminal liability under Section 420 arises where there exists an intension to defraud the other person at the time of alleged inducement. It is pertinent to note that the accused should have fraudulent intention at the time of making the promise, then only his act will fall under the purview of Section 420. It can be said that breach of contract can lead to offence of cheating only after proving the fraudulent intention of the accused at the time of alleged inducement. Accused will be held liable for committing offence of cheating when it is established that he was acting under dishonest intention at the time when he made promise and he had no intention to perform it further.



SEXUAL INTERCOURSE ON THE BASIS OF FALSE PROMISE TO MARRY


In the case of Uday v. State of Karnataka, the Apex Court referred to various judgements of High Court while deciding the matter related to Section 90 IPC and solved the case relying on two conditions where false promise to marry will come under the ambit of Rape.

1. If it is shown that the consent was obtained by the accused under a misconception of fact.

2. If it is established that the accused knew that the consent was given in consequence of such misconception.

In the case of Yedla Srinivasa Rao v. State of A.P., the Court considered some other necessary factors while deciding the voluntary and involuntary consent like the age of the victim, her education, status and family background.

In the case of Pradeep Kumar Verma v. State of Bihar, the Apex Court decided that if accused intentionally made a false promise of marriage to victim in order to get the consent of the victim for sexual intercourse, then the consent given by the victim will not be considered as a valid consent. The consent will be considered as void because accused had no intention to marry her and her promise to marry was considered to be a mere hoax. Even after getting the consent of victim for sexual intercourse, the accused will be held liable for rape under Section 375 IPC.

In the case of Anurag Soni v. State of Chhattisgarh, the court successfully differentiated between a promise which is false from the very beginning and the promise which is unfulfilled. In this case, the Court held that consent of the victim was based on misconception of fact, as the marriage of the accused was already fixed with another woman so, the accused is liable for rape as he made a false promise to marry the victim in order to get her consent for sexual intercourse.

In a recent case of , Pramod Suryabhan Pawar v. The State of Maharashtra and Ors., the Apex Court gave a synopsis regarding the pertaining issue of whether false promise to marry amounts to consent? The Court held that consent under Section 375 will be treated as a valid consent only when it involves an active and coherent deliberation of woman towards the said act. Moreover, the Court also gave two relying principles for understanding whether the obtained consent of a woman be held void by a “misconception of fact” arising out of a promise to marry.

1. The promise to marry should be made with fraudulent/dishonest means with no intention of being adhered to at the time it was given.

2. The false promise to marry should be directly relevant to the decision of woman to engage in sexual intercourse.


JUDICIAL PRONOUNCEMENTS WHERE PROMISE TO MARRY DOESN’T AMOUNT TO RAPE


In the case of Uday v. State of Karnataka, the Apex Court held that if a woman has given her consent voluntarily and deliberately to have Sexual intercourse with a man, without considering his promise of marrying her but because of their true love for each other, then in those circumstance, the man will not be held liable for the offence of rape. In the case of Vinod Kumar v. State of Kerala, the Apex Court clearly pointed out that man is not liable under Section 375 for rape when woman already knew that accused is married to some other woman and still she was ready to do sexual intercourse with him. In the case of Dhruvaram Murlidhar Sonar v. State of Maharashtra, the Apex Court held that there can be situations where women agrees to have Sexual intercourse because of her feelings of love for the accused and not on the basis of misconception of fact regarding promise of marriage created by the accused in the mind of the complainant. Also, there can be circumstances when the accused could not have foreseen or which are not under his control and he couldn’t marry her despite having intention to fulfil his promise to marry her, then in such circumstances, accused will not be held liable under Section 375 IPC.

In September, 2020, the Apex Court in Maheshwar Tigga v. State of Jharkhand, held that misconception of fact related to promise to marry should be in proximity of time to the occurrence of Sexual intercourse between the man and woman so that the criminal charges for rape can be levied upon him.


CONCLUSION

After analysing the recent judicial pronouncements, it is made clear that their lies a huge difference between rape and consensual intercourse. The Court plays an important role in identifying whether the accused actually wanted to marry the complainant or made a false promise to marry in order to have sexual intercourse with the victim.

Consent with regard to Section 375 of IPC involves deliberate consent after analysing the act and its consequences. A person who deliberately makes a rationale choice to have sexual intercourse after analysing its consequences, that person consent to such said act. There lies a substantial difference between a false promise made with a fraudulent intention and the breach of promise which is made in good faith but due to unforeseen circumstances, the promise remains unfulfilled. Consent of an individual is considered as “no consent” when the promise to marry is false and the person who made the false promise had the fraudulent intention at the time of alleged inducement. The false promise to marry should have a direct nexus with her decision to have sexual intercourse with the accused. However, breach of promise is not considered as a false promise.


Disclaimer: This article is an original submission of the Author.

NLR does not hold any liability arising out of this article.


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