Introduction
Under Section 375 IPC[i], Rape has been defined as certain sexual acts when committed on a female, under any of the circumstances mentioned under Section 375 IPC. If you read the section it will be very clear that there is no express provision of consent obtained on pretext of false promise to marry. The purpose of this article is to explain with the help of recent judicial pronouncements how courts reaches the view that consent given for sexual intercourse on a false promise of marriage amounts to “No Consent” and the accused is guilty of cheating and rape.
Section 90 IPC- Consent given under Misconception of Fact is not a Free Consent
The word consent as provided in Section 375 of IPC takes its meaning from Section 90 IPC[ii]. The section says that a consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.
In the latter part of Article you will see that through Apex Court’s decision the meaning of word ‘without consent’ under Section 375 IPC has been widened by the importation of the general meaning of the consent as given under Section 90 of the IPC. Hence, the courts have consistently held that consent given solely because of a false promise to marry cannot be regarded as consent, even though it is not one of the circumstances mentioned in Section 375 IPC to be defined as Rape.
Difference between Cheating and Breach of Contract/Promise
Before we move towards the cases where court ruled that false promise to marry amounts to cheating as well as rape it is necessary to understand in general terms the difference between Cheating and Breach of Promise.
In the case of ARCI v. Nimra Cerglass Technics (P) Ltd.[iii], the Supreme Court explained the difference between a breach of contract and the cheating. It was held that:
“The distinction between mere breach of contract and the cheating would depend upon the intention of the accused at the time of alleged inducement. If it is established that the intention of the accused was dishonest at the very time when he made a promise and entered into a transaction with the complainant to part with his property or money, then the liability is criminal and the accused is guilty of the offence of cheating. On the other hand, if all that is established is that a representation made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is the remedy for breach of contract in a civil court. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction.”
Likewise, in the case of S.W. Palanitkar v. State of Bihar[iv], the Supreme Court has held that in order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. It was also held that in order to bring a case for the offence of cheating, it is not merely sufficient to prove that a false representation had been made, but, it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant.
Thus, whether a breach of contract/promise also amounts to the offence of cheating would depend upon intention of accused at the time of alleged inducement. If it is established that intention of accused was dishonest at the very time when he made promise and without any intention to perform the promise, then liability is criminal and accused is guilty of offence of cheating.[v] However, if all that is established is that a representation or promise made by accused was subsequently not kept, criminal liability cannot be foisted on accused and only right which complainant acquires in such a situation is remedy for breach of contract in civil court and, thus, he can only file a civil suit.
Sexual Intercourse on the pretext of False Promise to Marry
In Uday vs State of Karnataka[vi], Supreme Court while taking note of various judgments of High Courts imported the concept of consent contained in Section 90 IPC and held that in a case where consent is alleged to have been given on a false promise to marry, if the following two conditions are fulfilled the act can be considered as rape:
Firstly, it must be shown that the consent was given under a misconception of fact.
Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception.
In Yedla Srinivasa Rao vs. State of A.P.[vii] some factors were mentioned by the court to ascertain a voluntary & involuntary consent like the age of the girl, her education, her status in the society and likewise the social status of the boy.
While answering the chief question in Pradeep Kumar Verma v State of Bihar[viii], whether false promise of marriage amounts to rape, Court said that if promise to marry is deliberately made by the accused with a view to elicit the consent of the victim without having any intention to marry her, it will vitiate the consent given by the victim. If at the very inception of the making of the promise the accused did not really entertain the intention of marrying the victim and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from a charge of rape.
In Anurag Soni vs. State of Chhattisgarh[ix], court reiterated the distinction between a promise which is unfulfilled and a promise which is false from the very beginning, as it concluded that the consent in this particular case was based on a misconception of fact and was vitiated as the marriage of the accused was already fixed to another woman and therefore, the promise given by the accused to marry the prosecutrix was a false promise with no intention of marrying the prosecutrix.
The law on the issue of consent obtained on a false promise to marry was recently summarized by the Hon’ble Supreme Court in case of Pramod Suryabhan Pawar vs. The State of Maharashtra and Ors.[x], where the court held that the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established:
- The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given.
- The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.”
Not all Cases of Promise to Marry Amounts to Rape
In Uday v State of Karnataka[xi], Supreme Court held that if a woman has freely, voluntarily and consciously consented to have sexual intercourse with a man not only on belief of promise for marriage but because of their deep love with each other, then in such a situation she understands the significance and moral quality of the act she was consenting to and hence cannot accuse the man of rape subsequently.
In Prashant Bharti vs. State of NCT of Delhi[xii], while noting that the victim was already married at the time of commission of the alleged offence, and therefore, she, being clearly aware of her subsisting valid marriage with someone else, could not have been induced into a physical relationship with the accused on the basis of a false promise to marry.
In Vinod Kumar vs. State of Kerala[xiii], the Hon’ble Supreme Court noted that the victim was not a “gullible woman of feeble intellect”. Rather, she was a graduate who displayed mental maturity of an advanced and unusual scale in her efforts to get married to the accused. This was a case where victim already knew that accused was married to someone else.
In Dhruvaram Murlidhar Sonar vs. State of Maharashtra[xiv] it was very clearly pointed out by court that there may be cases where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do, such cases will not come under the category of deception and rape.
Similarly Supreme Court in a very recent case of Maheshwar Tigga vs State of Jharkhand[xv], while acquitting a man accused of raping a woman on the pretext of marriage, observed that misconception of fact arising out of promise to marry has to be in proximity of time to the occurrence and cannot be spread over a long period of time coupled with a conscious positive action not to protest. Court further held that:
“Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her.”
The observation of the court came in the light of following facts that they were both smitten by each other and passions of youth ruled over their minds and emotions, physical relations were not isolated or sporadic in nature but regular over the years, the prosecutrix used to go and reside in the house of the appellant and delay of four years in lodgement of the FIR.
While closing the case court said the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deep seated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love.
Conclusion
There is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception.
Consent with respect to Section 375 of the IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action. It has to be kept in mind that there is a distinction between a 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. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception of fact” where such misconception was the basis for her choosing to engage in the said act.
[i] https://devgan.in/ipc/section/375/
[ii] https://indiankanoon.org/doc/1742535/
[iii] (2016) 1 SCC 348.
[iv] (2002) 1 SCC 241.
[v] Deepak Gulati vs. State of Haryana, (2013) 7 SCC 675.
[vi] 2003 Cri L.J. 1539 (S.C).
[vii] (2006) 11 SCC 615.
[viii] 2007 IV Cri L.J. 4333 (S.C).
[ix] 2019 (6) SCALE 211.
[x] (2019) 9 SCC 608.
[xi] Supra Note V.
[xii] (2013) 9 SCC 293.
[xiii] (2014) 5 SCC 678.
[xiv] AIR 2019 SC 327.
[xv] CRIMINAL APPEAL NO. 635 OF 2020.