FALSE PROMISE OF MARRIAGE AND SEXUAL INTERCOURSE: A JUDICIAL ANALYSIS

This article has been authored by Abhishek Wadhawan, a third year student at Gujarat National Law University.

Introduction: A Conceptual Understanding

Today, India is achieving great heights, however the security of women in India is still a pertinent issue. The number of crimes against women are on an exponential rise. One of the most common crimes against women today is that of rape. Rape is defined in Section 375 of the Indian Penal Code as an act of a man having a sexual intercourse with a woman without her consent and against her will or after getting her consent forcefully by threatening to harm or damage property.

The general notion among people is that a man can be convicted for the offence of rape only when the victim has not given her consent. It is imperative to note that a man can be convicted for rape even in a case where a consent is taken from a woman under some misconception or misrepresentation. Section 90 of the Indian Penal Code states a few instances where the consent given by the other person may not be a real consent. According to the said Section, a consent is not real when it is obtained under some threat or misconception of a fact.

There have been many instances where men have wrongfully had sexual intercourse with woman after promising that he will marry her in the future. However, such a promise to marry is sometimes simply a statement made by the man to induce the woman to have a sexual intercourse with him. Over the years, such false promises have made a lot of women turn into victims of rape. In order to avoid such cases of having sexual intercourse with a woman under the pretext of marrying her in future, the Indian Jurisprudence has identified such false promises to be equivalent to a misconception of a fact.

Analysing the Judicial Decisions

It is a settled principle in law that having sexual intercourse with a woman by falsely promising to marry her in future amounts to rape as the consent of the woman was obtained under a misconception. Though this principle of law has been identified, it is significant to note that in all cases where a man cannot marry a woman after having a sexual intercourse in the pretext of marriage with her does not amount to rape. Thus, the principle of law related to false promise of marriage to have a sexual intercourse with a woman can be better understood through the analysis of a few significant judgments.

In Yedla Srinivasa Rao v. State of Andhra Pradesh, the accused was already married yet he had a sexual intercourse with a woman by promising her that he will marry her in the future after divorcing his wife. On the pretext of this promise, the prosecutrix and the accused had consensual sex many a times but later the accused refused to divorce his wife and marry the prosecutrix. In this case the Supreme Court held that the accused was merely willing to have sexual relations with the prosecutrix from the beginning and he was never willing to marry her. Since, the promise of marrying the prosecutrix seems to be false from the beginning, the accused was convicted for the offence of rape.

In yet another important case, Sujit Ranjan v. State before the High Court of Delhi related to the issue that whether a woman who was in love with a man can charge the man with an offence of rape for falsely promising to marry her in the future. In this case, the Court held that it is important to note the facts and circumstances of each and every case before pronouncing any judgment. In issues related to rape by misconception, no set rule of law or test can be identified as such cases are highly dynamic and hence must be decided on the basis of the merits of the case. It was strongly ruled by the Court in this case that a woman who is in love with a man and has sexual intercourse with him with her free consent and if a man due to reasonable circumstances is unable to marry the woman, such a man cannot be convicted for the offence of rape.

The Supreme Court of India deliberated on the point of consent received on misconception in Deepak Gulati v. State of Haryana. The Court held that there is always a difference between breach of a promise and not giving a false promise. If the accused made a promise to the prosecutrix to marry her but later if the accused is not able to marry the prosecutrix for some reasons beyond his control, it would amount to a breach of a mere promise to marry the prosecutrix and in such a case the accused cannot be convicted for the offence of rape. However, if the accused had made a false promise and had no intention to marry the prosecutrix from the beginning itself, the accused can be convicted for rape by the virtue of a false consent as per Section 90 of the Indian Penal Code.

One of the major questions that needs to be addressed is how can it be concluded that whether the accused had a real intention of marrying the prosecutrix or not. The High Court of Rajasthan has attempted to answer this question in the recent case of Vishal Goyal v State of Rajasthan. The accused in this case had a long-standing sexual relation with the prosecutrix. The prosecutrix and the accused were in a consensual relationship with each other and the parents of the accused were also aware about their relationship and the intention of the accused to marry the prosecutrix. However, the parents of the accused later did not approve their marriage and hence the accused could not marry the prosecutrix. The Court held in this case that the accused had made a promise to marry the prosecutrix and his intention to perform this promise could be seen by the knowledge of his parents about his relationship with the prosecutrix. In such a case, the consent of the prosecutrix for the sexual relation cannot be said to be obtained through any misconception as her consent was given by her consensually and out of her own love and affection towards the accused.

By virtue of Section 114A of the Indian Evidence Act, if a woman is able to prove that the she had sexual intercourse with the accused and she claims that she had given no consent for the sexual intercourse, then it would be presumed by the Court that the sexual intercourse was performed by the accused with the woman without her consent.

However, in State v Sunny Bhagat, it was noted that the prosecutrix was not able to prove the offence beyond reasonable doubt that the accused had sexual intercourse with her on the pretext of marrying her in the future. The Court in this case held that since the prosecutrix could not prove her case and the Court had two possible views before it, on one end a presumption may be given to the prosecutrix and the accused may be punished or else the accused may be given preference and acquitted from the charge since the case could not be proved reasonable doubt against him. The Court was the opinion that even in cases related to Section 375 of the Indian Penal Code read with Section 90 of the Indian Penal Code the Court must be bound by the settled principle of law that in cases where two views are possible, the Court must take the view which favours the accused and hence the accused must be acquitted from the charges levelled upon him.

Conclusion

A man cannot always be punished when he gets into a sexual relation with a woman after promising to marry her but is unable to marry her in future. Each case related to sexual intercourses in the pretext of marriage must be decided after a due analysis of the relevant facts and circumstances of the case. There exists a difference between non-performance a promise and making a false promise. If a man makes a promise to marry a woman with a true intention of performing the promise but due to some reasons which are unforeseeable and outside his control, a man cannot be punished for the offence of rape, as deliberated by the Courts in the aforementioned decisions. However, in cases where a person makes a promise to marry the woman with no intention to perform it and hence makes the promise to merely get the consent of the woman for a sexual intercourse, then such a consent is said to be made under a misconception of a fact and the man can be punished for the offence of rape.

This article was originally published by Lex Insight. Available for access here.