intercourse under promise to marry constitutes rape only if from initial stage accused had no intention to keep the promise.
Calcutta High Court (Lachmi @ Lakshmi Kanta Kamath vs The State Of West Bengal)
What IPC Say?
Rape is defined under Section 375 IPC as a sexual act committed against a woman under the following condition i.e.,
- Against her will;
- Without her consent;
- with her consent, when consent has been obtained under fear of death or hurt;
- where consent has been given by the victim in the wrong belief that the man is her husband;
- when the consent is given when she is of unsound mind or intoxicated and unable to understand the nature of the consequences of what she is consenting to;
- consenting from a girl under the age of 18 years;
- when she is not in a position to communicate the consent.;
So what does the Law Say about the consent on the pretext of non intended marriage? NOTHING!
How about Judgments?
When it comes to the jurisprudential aspect to this issue, there always has been a division of rationale .
Before 2003
Before 2003, there was a general opinion amongst various High Courts that sex on pretext of unintended marriage is not an act of rape!
Jayanti Rani Panda v. State of West Bengal and Ors. (1984)
Calcutta High Court held that the consent of a full-grown woman for an act of sexual intercourse on the pretext of marriage cannot be construed as Rape.
Mir Wali Mohammad v. The State of Bihar (1990)
Bihar High Court held that, Though the lady gave her consent due to the false promise of marriage, she knew what was being asked from her and what she was giving her consent for. Hence, there was no misconception of fact and Section 90, I.P.C. has no application”. Moreover, the Court held that this matter wouldn’t come under the purview of rape.
Araj Sk. v. State of West Bengal (2001)
Calcutta High Court held that such an act is in any way howsoever could not be construed as responsible conduct but it also won’t count as rape under Section 376 of IPC.
During 2003
Uday vs. State of Karnataka (Supreme Court | 2003)
Supreme Court held that the act of sexual intercourse on the pretext of false promise to marry would be considered as a rape if, it qualifies the following of the two conditions:
- Consent was given under the misconception of the fact.
- It must be proved that the person who obtained the consent knew or had reason to believe that the consent was given in consequence of such misconception.
Post 2003
Deelip Singh v. State of Bihar (Supreme Court | 2005)
Supreme Court held that it has to be seen during the inception of the making of the promise, as to if the intention to marry the victim was true or hoax at the time of making it.
Yedla Srinivasa Rao v. State of A.P. (Supreme Court | 2006)
It is now a settled principle that there is a distinction between a hoax promise or a mere breach of a promise. Facts of each case will determine the most probable case scenario w.r.t the present of the classification of promise. Things to be considered in each case would be varying from social status to the educational background of the boy, the age of girl, etc.
Prashant Bharti v. State of NCT of Delhi (Supreme Court | 2013)
While the victim side of story is always given the preference, but if there arises a doubt in the mind of Court, Court will not proceed with the conviction based on the statement of Victim. Here in the present case, the victim was already married at the time of sexual intercourse. Therefore, the plea that the act of sex as done on the fake promise of marriage is baseless and the act wouldn’t be considered as an offence of Rape under Section 376 of IPC.
Recent Judgments
Anurag Soni v. The State Of Chhattisgarh (Supreme Court | 2019)
There is a distinction between a promise to marriage which is unfulfilled and there a promise which is just a hoax and it is the later one which will be concluded as misconception of fact and accused can be charged for the offence of rape.
Pramod Suryabhan Pawar v. The State of Maharashtra & Ors. (Supreme Court | 2019)
To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.”
Rohit Pradhan
Recent judgments made it fair though..