By: Nimisha Mishra* |
Rape is the most physically and morally reprehensible crime, it not only assaults on the body but also the mind and privacy of the victim. It is a crime against the entire society and violates the basic human rights of the victim. The gravity of rape is such that it leaves a permanent scar on the body and mind of women and defiles her esteem and dignity.
In a patriarchal society like India, where the status of women is not much recognized, the victim and her family become easy targets of victim-shaming and slander. There is a sudden rise in the incidences where sexual favours are gained from a woman on an inducement of a false promise of marriage.
When is it called consensual?
Consent is said to be present when there is a participation in an act uninfluenced by any threat or misconception. It involves a deliberate exercise of intelligence based on knowledge of the significance and moral effect of the act.
As per Section 90 of the Indian Penal Code, 1860, consent is vitiated where sexual intercourse is obtained on a false premise of marriage and misconception of facts. It further provides that if consent is given under the fear of injury or misconception of facts or under the state of intoxication, it will not be considered as consent. Section 90 though does not define what consent is, it certainly lays down conditions which will not amount to consent.
Moreover, Section 375 not only requires an exercise of knowledge and intelligence of action but also a full exploration of choices between resistance and assent. In Deepak Gulati v. State of Haryana, the court observed that the consent could not be obtained through coercion, deceit or even by misguiding a person. If it is received through any of the above means, it cannot be considered as valid consent.
Intimate relations for an indefinite period
In India, marriage is considered as a life-long commitment and a physical, emotional, and spiritual union between a male and a female. It is the beginning of the family and is regarded as the most sacred duty and obligation among the married couple.
For a man to be held liable for rape, he must obtain the consent from the girl by giving an illusion of marriage and it has immediate relevance to the girl’s decision to engage in sexual activity. The Delhi High Court in the recent judgment remarked that “a promise of marriage cannot be held out as an inducement for engaging in sex over a protracted and indefinite period of time” while dismissing the appeal of a woman who filed it after an inordinate delay of six hundred and forty days. The court held that continuation of sexual activity for an indefinite period will not per se amount to rape. In this case, it was observed by the court that conversation about marriage took place subsequent to the intimate physical relationship between the parties. The woman was aware that the man was already married, despite that she established an intimate relationship with him. After analyzing all the facts the Delhi High Court acquitted the accused under Section 417/376 of the Indian Penal Code, 1860.
It is pertinent to mention here that in case of Pramod Suryabhan Pawar v. State of Maharashtra, the court pronounced that when the consent for sexual intercourse is given after evaluating all the consequences and nature of the act then it will be considered as valid consent.
Importantly, the court also remarked that "It is difficult to accept that continuing with an intimate relationship, which also involves engaging in sexual activity over a significant period of time, can be construed as involuntary and secured not by affection but only on the lure of marriage."
The promise of false marriage can not be an excuse from rape charges
A clear distinction can be drawn between rape and consensual sex. When the case of rape on the false premise of marriage comes before the court, it must carefully examine the intention of the man behind the sexual intercourse, whether he actually intended to marry the victim or he had the mala-fide intention to merely engage in a sexual relationship with her.
It is pertinent to mention that the premises on which the victim has given consent need to be closely observed. When consent for sexual intercourse is given on a false assurance of marriage such an offence is covered under section 90 of Indian Penal Code, 1860. The excuse of marriage will not evade the offender from the offence of committing rape.
The consent of women, as per section 375, vitiates when there is a false promise of marriage is made by the man and she relies on those facts. Section 375 of the Indian Penal Code, 1860 defines rape when a man:
penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do with him any other person:
inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do with him or any other person.
In the case of Yedla Srinivasa Rao v. State of Andhra Pradesh, the accused kept on persisting and persuading the victim to have sexual intercourse with him and promised to get married. When the victim becomes pregnant, she demanded him to keep his promise and marry her. However, rather than marrying her, he brought her tablets for abortion, but it didn’t work. She contended that had there not been a promise to marry, she would never have consented for the sexual intercourse. When the matter came before the court, it convicted the accused after considering section 90 and section 375 of IPC.
Distinction between a breach of promise to marry and false promise to marry
There are also several cases which came before the court where the man, despite all his intentions to marry, could not marry due to unforeseen circumstances or situation beyond his control. The prosecutrix may on account of her love and passion consents to establish sexual relation with the man. Such consent cannot be invalidated on the mere ground that the man could not marry her, since she has consented out of her free will and after acknowledging the consequences of her actions. A person should be accused of rape only when he has a mala-fide intention and he makes a false promise of marriage for sexual intercourse. If there is no correlation or the immediate relevance of the sexual intercourse and the marriage then it will not be considered as fraud or misconception of fact.
The presumption under the Evidence Act
When sexual intercourse is committed by the accused and the victim states in the evidence that it was committed against her will, it will be presumed by the court to be committed against her will. By observing the atrocities committed against women, the court considered it reasonable to introduce a presumption in the Evidence Act. Henceforth, Indian rape laws bind the courts to believe the victim under Section 114A of the Indian Evidence Act, 1872.
In most of the cases, it is observed that women consent for sexual intercourse because of the promise of marriage. However, when promises are not kept, women face social stigma and find it difficult to enter a marital relationship with another person because they are considered of bad character. The consequences of such actions have a huge impact on the mental health and societal position of women.
Conclusion
In a case where the accused made a false promise to the victim that he would marry her and obtained her consent for sexual intercourse, and if the accused had mala fide intention, then he should be convicted for the offence of rape. If it is not done, then immoral and dishonest persons will exploit girls by alluring them with a false promise of marriage and obtaining their consent for sexual intercourse and later, refuse to marry them on a belief that the law is on their side and they can easily get away with their misdeeds.
Allowing these persons to go scot-free after the crime they have committed will deceive the intention of our legislature which considered rape to be such a heinous crime to the length that it attracts imprisonment for life. Hence, the courts should not and cannot give license to those who keep on looking for opportunities to exploit girls and have sexual intercourse with them on the pretext of marriage. For such a commission of a crime, they should be convicted under Section 376, IPC.
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* The author is a student at NALSAR University of Law, Hyderabad.
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