A man and woman engage in marriage, which is a legally recognized and socially accepted engagement. Both parties receive a legal identity and rights as a result. Marriage is a choice that demands both a man’s and a woman’s approval. It should be a mutual engagement. In many cultures, getting married is a must before engaging in any sexual behavior. In rare instances, it has been noted that sexual activity has occurred before marriage in the hopes that the guy will one day marry the girl.
But what if the consent was granted under pretenses or based on erroneous information to commence a sexual encounter? Is such behaviour deemed to be unlawful? Is it a crime? In a landmark decision, Kashinath Narayan Gharat v. The State of Maharashtra (2021), the Bombay High Court described and clarified the crime of cheating and addressed the question of whether refusing to be married after pledging to do so would be considered cheating.
SUMMARY OF THE CASE
The Indian Penal Code, 1860, Sections 376 and 417 were used in the complaint. The defendant had a sexual relationship with the woman. The accused allegedly engaged in sexual activity with the complainant before declining to wed her. By a ruling and order issued by the learned Additional Session Judge, the appellant was found guilty of violating Section 417 of the Indian Penal Code by engaging in a sexual connection with the victim under the promise of marriage. He was given a one-year term of harsh imprisonment and a fine of Rs. 5000. According to Section 376 of the Indian Penal Code, he was exonerated of the crime. The High Court of Bombay later cleared the appellant of all charges after reviewing the available evidence and the case’s facts, and the verdict was overturned.
The prosecutrix and the accused in this instance had been acquainted for three years. It was noted that neither the permission for a sexual encounter nor the absence of any evidence suggesting that the accused did not want to wed the accused were grounds for suspicion. Furthermore, it was clarified that merely refusing to marry her would not be a violation of Sections 376 and 417 of the Indian Penal Code in the absence of any supporting documentation.
The Case focused on the following four provisions:
Cheating is punishable under Section 417 of the Indian Penal Code, Rape is punishable under Section 376 of the Indian Penal Code, and Consent Known to Have Been Given Out of Fear or Misperception is punishable under Section 90 of the Indian Penal Code and Section 374 of the Code of Criminal Procedure, 1973.
The Indian Penal Code’s Section 417 addresses the crime of “cheating,” which is defined as the dishonest concealment of facts. The offense carries a one-year sentence in jail, a fine, or both. The issue of making false promises in this instance solely to start a sexual relationship has been examined. In this case, making a false promise and giving assent when misinformed about the facts are both considered cheating. While merely refusing to get married is not regarded as cheating.
Rape is a form of sexual assault in which the victim is coerced into having intercourse against his or her will and under violent conditions. In addition, Section 376 states that if a man attempts to engage in sexual activity with a woman:
- Against her will; without first getting her permission;
- If consent is gained because of fear for her safety or the safety of someone she is linked to or interested in;
- If she mistakenly thinks the person, she is giving her consent to is her husband while he is not;
- Consent to mental instability;
- If she is under the age of sixteen, consent is provided.
Consent under fear or misconception
Consent is when someone agrees to something. Such consent must be given without any fear of life or misconception. The consent that is given under fear of injury to a person or death or misconception comes under this section. In the present case, consensually establishing a physical relationship will not come under Section 90 of the Indian Penal Code.
Appeals from convictions
Section 374 of the Code of Criminal Procedure deals with any appeals against any impugned judgment from an accused to Supreme Court and High Court who has been convicted on a trial.
What is a false promise
A false promise is made to mislead the recipient into gaining something or knowing that the promise will not be kept. False promises are made when the person making them wants something in return and are aware that, until the promise is kept, they will not receive it.
Promise and factual misunderstanding
It is referred to as a “misconception of facts” when consent is given based on a false promise to marry and the person making the promise has no intention of keeping it but just makes it to engage in sexual activity. In the eyes of the law, the consent provided while being misinformed about the facts is not consent. A simple broken promise, however, is not a false promise.
Conclusions in the Case
It became essential to determine whether the following factors were taken into account before making a decision:
If the accused never wanted to get married; whether the permission was obtained through misinformation about the facts; and whether the physical relationship was consensual. The relationship lasted for three years, and it was determined that an agreement for a physical relationship was freely granted. They were separated by a social divide. There was no proof that the defendant deceitfully lied about the marriage proposal to start a sexual relationship. The accused was cleared of all charges because there was no evidence to demonstrate if such permission was granted based on a false understanding of the circumstances.
Similarly, in Maheshwar Tigga v. State of Jharkhand (2020)
In this instance, the prosecutrix had a four-year connection with the defendant. The prosecutrix claimed that a knife was used to rape her. Later, the accused made a marriage commitment to her and kept up their physical contact. The two stayed together for four years. Even more, she said they were engaged. She spent fifteen days in the accused’s home during this time. The prosecutrix went on to say that the marriage could not be recognized because of religious obstacles. In this instance, the issue was whether the vow made was based on a false assumption that he never wanted to get married.
Things were considered, including:
- The prosecutrix stated in her letter that she had been beaten by her parents because of their relationship.
- The prosecutor is a Christian, whereas the accused is a member of a scheduled caste, creating a religious divide.
- The consent was either granted out of genuine love or out of terror.
- The closeness of time
Consent provided out of fear or a false perception of the truth is not considered consent under Section 90 of the IPC. A physical relationship was developed consensually with the permission brought on by their love affair, as was seen from the facts. Furthermore, the permission granted under a false impression of the facts must be given quickly and cannot be given over four years. Furthermore, consent was voluntarily given.
People frequently abuse the laws intended to protect them and harass others. It is properly stated after careful consideration that the refusal to marry will not constitute cheating or rape if there was no purpose to deceive anybody by making false representations and if the relationship was developed with mutual consent. Women in particular are impatient and fall prey to offers to start a sexual connection. Although it is unjust to play with someone’s emotions, in this instance, refusing to get married is not cheating if the marriage was prevented by social constraints or for any other cause. In addition, nobody can be forced to marry someone. Therefore, employing such laws solely to prevent someone from marrying someone else is abusing the rights since the punishment for rape is for those who endure suffering and either do not consent to or are compelled to establish a physical relationship. It also has an impact on those who have had genuine rape suffering. Such conclusions contribute to defining the hazy boundary between willing consent and coerced consent.
Author(s) Name: Abhivyakti Parashar (Symbiosis Law School, Pune)