Introduction
Marriage is a sacred institution in our tradition-bound society. Marriage is the beginning of a family and is a life-long commitment. Marriage is more than a physical union. It is also a spiritual and emotional union. It is the greatest event in an individual’s life and brings with it many responsibilities. Marriage is followed by traditional rituals for consummation i.e. sexual intercourse. Consent plays a very important role in any physical relationship. Mutual consent must be present at the time of sexual intercourse either before marriage or after marriage. But what if a man and a woman enter into sexual relations where the woman grants consent under the belief that the man will marry her? Will it amount to rape if the man does‟t marry the woman after having physical relation?
Legislation for Rape
The law in India for rape is stated in the Indian Penal Code where section 375 defines what rape is. There are three categories of rape in law.
- Rape by force – where consent has been expressly denied; or where the consent has been given under duress or coercion; or where the victim was incapable of giving consent because of the physical or mental state she was in.
- Statutory Rape – where the victim was not in a position to give consent because of age.
- Rape by fraud – Where the consent has been obtained by use of deceit. Rape by a false promise to marry is an extension of the third category i.e.
Section 90 & 375
Rape by Fraud wherein section 90 of the Indian Penal Code is attract as the consent is obtaine by misconception or fraud. But here to count “false promise to marry” under section 375 i.e. rape. We need to appreciate the difference between false promise and breach of promise. A promise is false, if the promisor have no intention to fulfill it. Thus it was false from the beginning. And the promisor made it solely with the object of getting the woman to consent.
On the other hand, a breach of promise may happen due to several factors. The boy may fall out of love after some time. He might get involve with another partner. He might be compell by his family to marry someone else. Or there could be many other reasons, why a male may not fulfill his promise of marriage. But, this doesn’t mean that the promise was false from inception. However, the determining factor is the “intention” of the accused at the time of the act. If he never intend to marry then he is guilty of cheating. It depends on case to case and the evidence led in the matter. So not every failed promise amounts to rape.
Court’s view
The Anurag Soni case
The Supreme Court bench headed by Justice D.Y. Chandrachur in the recent case of “Anurag Soni v. State Of Chhattisgarh” [AIR 2019 SC 1857], quashed an FIR filed by the complainant, who was an Assistant Commissioner of Sales Tax against the accused who was a Deputy Commandant in the CRPF. The girl had alleged that the accused had established sexual relations with her on a false promise of marriage. The Court held that in every case where a man fails to marry a woman despite a promise, he cannot be held guilty of rape.
It is for the prosecution to prove that the promise to marry is with no intention to honor it. And that such a promise was the only reason why a woman agree to a sexual relationship. Here the Court must very carefully examine whether the accused had wanted to marry the victim, or had mala-fide motives and had made a false promise only to satisfy his lust
There is no formula or fix criteria for determining whether consent was voluntary. What is a voluntary consent and what is not a voluntary consent depends on the facts of each case? But factors such as age, intelligence, consciousness, morality, relationship with accused, etc. may be considered. The Court must, in each case, consider the evidence before it and the surrounding circumstances, before concluding, because each case has its peculiar facts, which may have a bearing on the question whether the consent was voluntary or was given under a misconception of fact.
Some other cases
On the other hand, the Supreme Court has ruled that if a woman continues to be in a physical relationship with a man, despite being unsure of marriage, she cannot accuse him of rape because he made a false promise of marriage to her. The bench also ruled that the false promise of marriage must be of immediate relevance or should bear a direct nexus to the woman‟s decision to engage in the sexual act. It further state that there is a distinction between a false promise on the understanding by the maker and the breach of a promise in good faith but ultimately not fulfill due to circumstances.
Consequences of such cases–
It is an accepted fact that rape has an enduring effect on the life of the victim. However, in most cases, it is not just the victim that experiences the consequences of sexual violence but the family also suffers the same. Victims of sexual violence experience a wide range of physical and psychological problems. Rape causes the greatest distress and humiliation to the victim and her family members. But it is also important to take note of the registration of fake cases. False implication in such type of cases of rape under the false promise of marriage causes extreme humiliation, disgrace, and mental agony to the accused.
Fake Charges-
Ones the woman falsely charges the man for rape without consent, the Court is bound to presume that she does not consent. Here section 114-A of Indian Evidence Act is apply. It specifically states that “where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped. And she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent”.
Registration of fake cases plays havoc with the actual crime statistics. Even otherwise not all rapists are punished. Our Indian social background is not very encouraging for women seeking justice. Owing to the stigma attached very few women complain, fewer cases go up to the stage of trial owing to a high attrition rate and there are still lesser convictions. Rape is the most hated crime in society. However false complaints tend to trivialize it. False implication in rape cases causes extreme humiliation, disgrace, and mental agony to the accused.
No sooner than the news of a person having been accused of rape spreads in society, he is humiliated, ridiculed and looked down upon by all. Even his honorable acquittal by the court is not taken note of and does little to salvage his lost honor and dignity. He has to live with the trauma of having been a rape accused throughout his life. Such cases cause people to view even genuine cases through a tinted lens. This doubtfulness can impede a victim‟s quest for justice.
Need of proper mechanism
A mechanism needs to be evolve to separate the genuine cases from the fake ones and prevent abuse of the laws. But otherwise, rape has a lifelong effect on the lives of victims. It leaves a permanent scar on the victim’s life and is a crime against the entire society. In a case where the accused made a false promise to the victim that he would marry her and obtained her consent for sexual intercourse, and if the accused had mala fide intention, then he should be convicted for the offense of rape. If it is not happen, then immoral and dishonest persons will exploit the girls by alluring them with a false promise of marriage. And obtaining their consent for sexual intercourse and later on, refuse to marry them.
Allowing these persons to get away unpunished even after the crime they have committed will deceive the intention of our legislature which considers rape to be such a heinous crime to the length that it attracts imprisonment for life. Hence, the courts should not and cannot give license to those who keep on looking for opportunities to exploit girls and have sexual intercourse with them on the pretext of marriage.
Conclusion
India is still largely conservative when it comes to matters of sex and sexuality. Virginity is prize and a woman who have premarital sex, for her it is hard to get marry. These are not rare cases. According to the government’s crime data record for 2016, police recorded 10,068 similar cases of rape by “known persons on a promise to marry the victim”. In 2015, that number was 7,655. This true state of such cases makes me agree to the advice made by a Mumbai based senior lawyer and activist Flavia Agnes who suggests that there should be a separate section under the rape law to deal with such kind of cases where instead of harsh jail terms, the deceiving men could be made to pay damages, maintenance, and future security for the child. This suggestion seriously needs to be given a genuine thought shortly.
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