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SEX ON FALSE PROMISE OF MARRIAGE: RAPE OR NOT?

Sex on False Promise of Marriage - Ritika

A few months earlier in May 2020, The Orissa High Court passed a judgment that says “Sex on the false promise of marriage will be considered as RAPE.”[1] There have been many cases filed in this regard and there are many judgments in support of this statement and many which are completely against it. After this case, there was a huge controversy in this matter; many articles were taking this judgment in a positive way and many in a negative manner. After this case, the major question that arose was “Is there any rationale that Court follows before deciding whether it is rape or not?” Over the years the court had followed many rationales. To understand this concept we need to understand what points are covered to make any sexual activity to be the Rape. According to Section 375[2] of the Indian Penal Code, “a man is said to commit Rape” if the sexual intercourse is done:

  1. Against the will of women
  2. Without her consent
  3. If consent is given under fear of death or injury.
  4. Where consent has been given by the victim in the wrong belief that the man is her husband.
  5. When a female is of unsound mind or intoxicated and unable to understand the nature of consequences of what she is consenting to.
  6. If the girl is below 18 years of age.
  7. When she is not in a position to communicate the consent.

The major point of focus in this description is ‘CONSENT’. There have been debates regarding this term. Before 2003, the court usually sees whether there was consent or not, if there has been sexual intercourse in the false pretext of marriage and there was consent, the court will not consider it to be RAPE. But afterward, the court started to read section 375 with section 90 of the Indian Penal Code. Section 90 of the Indian Penal code talks about ‘consent’, according to this section, “If consent is given under a misconception of fact, it will not be Consent.” In the case of Yedla Srinivasa Rao vs State of A.P[3], the Supreme Court said that the promise was fraudulent from the beginning and observed the girl would never have given consent for sexual intercourse if the boy has never promised her marry. The Supreme Court also referred to section 90 of IPC and stated that consent by fraudulent means will not be covered as consent U/S 90. It was also stated that whether the consent of a female is valid or not, must be proven by the male.

In the case of Pradeep Kumar vs State of Bihar and Anr.[4] the Supreme Court observed that sexual intercourse in the false pretext of marriage will not always be treated as Rape, All the previous judgments made in this regard are not meant to be studied as a broad proposition of law. This will vary according to the facts of the case.

In another case of Deepak Gulati vs State of Haryana[5], the Session Court announced 7 years of rigorous imprisonment and when the case was brought to High Court, the High Court does not treat the promise to marry as a false promise. Here the accused promised the defendant to marry and had sexual intercourse, the couple ran off from Kurukshetra to Ambala to get married, but the accused was arrested by the police on the false complaint of kidnapping by the defendant’s family. The Court said that due to unrealistic circumstances the accused was not able to marry her and this will not be treated as Rape as the intention of the accused was not fraudulent. The Court contended that the inability to marry or circumstances beyond the control of the accused, where the accused was not able to marry is a different matter and will not be considered as rape. The INTENTION of the accused will be considered while giving judgment in this case. The court will also see whether, at the time of making the promise to marry, the intention of the accused is fraudulent or not, if yes, it will be considered as Rape, If not, it will not be considered Rape.

In the case of State of Uttar Pradesh vs Naushad[6] the Session Court convicted the accused with life imprisonment but the High Court passed the judgment against the judgment of the Session Court. Again when the appeal was raised before the Supreme Court of India, the judgment of the High Court was overruled, the Supreme Court stated with reference to the evidence, the intention of the accused was fraudulent from the very beginning and hence sentenced the accused for life imprisonment.

Anurag Soni vs State of Chhattisgarh[7] In this case also the court said that any promise made with the false pretext of marriage will be considered Rape. Here also the intention of the accused was fraudulent from the very beginning.

From the abovementioned judgments three points can be concluded:

  • For Valid Consent, it mandatory to be proven that the Female was willingly indulged in sexual activity and she has given her consent by voluntarily exercising her mind.
  • If it is proven that the promise to a marriage made by the accused and the intention was fraudulent from the beginning, then the sexual activity will be considered as Rape.
  • Lastly, if it is proven that the intention was not fraudulent and due to the uncontrollable circumstances, the accused is unable to marry, will not be considered Rape.

Author(s) Name: Ritika Saxena (Shri Ramswaroop Memorial University, Lucknow)

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Reference(s):

[1] Achyut Kumar vs State of Orisha, CRLA NO. 940 of 2019

[2] Indian Penal Code,1860

[3] Yedla Srinivasa Rao vs State of A.P 2006(11) SCC 615

[4] Pradeep Kumar vs State of Bihar and Anr. AIR 2007 SC 3059

[5] Deepak Gulati vs State of Haryana (2013) 7 SCC 675

[6] State of Uttar Pradesh vs Naushad AIR 2014 SC 384

[7] Anurag Soni vs State of Chhattisgarh CRIMINAL APPEAL NO. 629/2019

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