Consensual Intercourse vis-à-vis False Promise of Marriage – The Changing Dimensions of ‘Consent’ in the Offence of Rape

By Paras Gupta, 2nd Year, B.A.LL.B (Hons.), Kurukshetra University

Rape, the most hated crime, is proliferating its roots at an irrepressible rate in India with the rape on pretext of false promise of marriage becoming one of its robust branches. ‘By promising marriage’ has become a means for individuals to cheat their partner. According to the data released by National Crime Records Bureau (NCRB), a total of 33,356 cases of rape were registered in 2018 of which in 12,256 cases, the accused was either a friend, online friend or live-in-partner who lured the girl or women on the pretext of marriage or separated husband. [1]

Rape, one of the most heinous crimes is defined under Section 375 of Indian Penal Code quite clearly and exhaustively. The accused, if proven guilty, is liable to be punished for a minimum of seven years in jail. While taking into account the circumstances where the ‘consent’ so obtained from the women stands vitiated, Section 375 of IPC nowhere speaks of the consent taken on pretext of false promise of marriage. Affirmatively Section 90 of Indian Penal Code is invoked in such matters by the Indian Courts. Section 90 of IPC states 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.[2] Often the consent given in such cases by the women is treated as the consent given under the misconception of fact and the accused is held liable for the offence of rape. However, the intent of the accused if come out to be foul during the trial, nullifies the consent. Delhi High Court Advocate R.H.A Sikander, while clarifying this connotes, “If the consent was volitional at any point of time, even under the pretext of any kind of promise made, it would be cheating and not rape. It will be rape only if the accused had malafide intentions since the beginning of the affair.” [3]


The judgments of Indian Courts in this context has always been conflicting. While Calcutta High Court in Arak Sk v. State of West Bengal [4] and in Jaynati Rani Panda vs. State of West Bengal & Ors [5] held that the consent of full grown girl to the act of sexual intercourse on a promise of marriage cannot be treated as an act induced by misconception of fact and hence the accused cannot be held guilty of rape, the Patna High Court in Saleha Khatoon vs. State of Bihar [6] held that sexual intercourse on pretext of the false promise of marriage amounts to rape. Even today, the law is not clear in this context. Orissa High Court while giving judgment in G. Achyut Kumar v. State of Orissa [7] on 21 May, 2020 observed that “if a person engages in sex on a false promise of marriage than it does not constitutes rape while Supreme Court in Anurag Soni v. State of Chhattisgarh [8] observed that sex on pretext of false promise of marriage is rape.

The dimensions of ‘consent’ in the offence of rape has changed a lot over a period of time. Section 375, which defines rape, has nowhere mention of consensual sex being made on pretext of false promise of marriage. With the spike in cases of ‘consensual sex’ on pretext of false promise of marriage, the dimension of consent is changing, vitiating the efficiency of legal system in India. Even ‘consensual sex’ done before marriage can now be termed as rape if the accused had malafide intentions since the beginning of the affair. Section 375 of Indian Penal Code elucidate an act as rape if it is committed “against her will”, “without her consent, “when her consent has been obtained by putting her or any person in whom she is interested in fear of death”. If these essentials are not fulfilled, the sexual intercourse should not be termed as rape but with the expeditious increase in the cases of consensual sex done on pretext of false promise of marriage are aggrandizing, the definition of ‘consent’ seems to be changing making the accused liable for the commission of offence of rape. 

The essence of ‘force’ that must be there for the commission of the offence of rape is diminishing with the surge in the cases of Consensual Intercourse vis-à-vis False Promise of Marriage, thus changing the dimensions of ‘consent’ in the offence of rape and intensifying the tussle between courts on this issue vitiating the efficiency of legal system in India. The making of stringent laws is the pressing need of the hour in order to give an apt meaning to the word ‘consent’ in Section 375 of Indian Penal Code and to resolve the conflict going on between the Indian Courts in relation to this issue. In India where laws are stringent for the protection of women, it is also necessary that the word ‘consent’ in interpretation of rape be properly defined in order to preclude the possibility of any injustice with an innocent.

DISCLAIMER : All rights reserved to Legally Layman and Lexstructor

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Endnotes :

[1]  94% offenders known to rape survivors: NCRB Data, The Times of India (https://timesofindia.indiatimes.com/india/94-of-offenders-known-to-rape-survivors-ncrb-data/articleshow/73219792.cms

[2] See Section 90 of IPC (https://www.advocatekhoj.com/library/bareacts/indianpenalcode/90.php?Title=Indian%20Penal%20Code,%201860&STitle=Consent%20known%20to%20be%20given%20under%20fear%20or%20misconception)

[3] Does Going Back On Marriage Promise After Consensual Sex Amount to Rape, Outlook Magazine (https://www.outlookindia.com/website/story/does-going-back-on-marriage-promise-after-consensual-sex-amount-to-rape/300021)

[4] 2001 Cri.L.J 416 Calcutta HC

[5] 1984 Cri.L.J 1535 Calcutta HC

[6] 1989 Cri.L.J. 202 Patna HC

[7[ CRLA No. 940 of 2019

[8] 2019 SCC OnLine SC 509 

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