This question very often comes to the mind of a girl who consents having entered into physical relation with her boyfriend on the false promise of being married and when the marriage actually couldn’t happen for any reasons whatsoever, the girl start to feel being physically abused or raped sometimes. Since large number of cases are being filed everyday it becomes really difficult for the police to collect direct evidence as in such cases the promises if any given or consent taken on the basis of those false promises are between the girl and a boy and the police as well as the courts have to rely on the circumstantial evidences in order to come to a finding as to whether the consent was taken on the false promise of marriage in future or not.
Now let us understand the concept of consent in terms of free consent as defined in the Indian Penal Code, 1860. Section 90 of the Indian Penal Code defines the term for the propose of this code and it says that Consent known to be given under fear or misconception.—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; or Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.—unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
Therefore if the consent given by the girl under the misconception of fact the consent cannot be said to be free and so-called consent under a false promise of marriage is no consent. Accordingly, the consent obtained in establishing a physical relationship like husband and wife under false promise to marry is no consent as per law, if the intention of the boy was never to marry the girl since the inception at the time when the consent was taken and was merely taken for the purpose of physical exploitation of the girl. But if however the physical relation was entered into with the free consent of the girl then the same cannot be regarded as rape or on the basis of the false pretext of getting married.
Hon’ble Courts time and again have defined the term consent and held whether the consent so taken was free or not. In Deepak Gulati vs State Of Haryana Hon’ble Supreme Court of India held that sex based on the false promise of marriage can be rape in certain situations. The apex court observed that there is a clear distinction between rape and consensual sex and the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives. If the accused had made a false promise to only to satisfy his lust, it will fall within the ambit of cheating or deception and there is a distinction between the mere breach of a promise, and not fulfilling a false promise. The court further said that it must be examined whether promise was made at an early stage and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. However, the court clarified that in some situations the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, the situation does not necessarily lead to rape and the court must consider other evidence as well for support.
Similarly, where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so, the case should be treated differently and cannot be considered rape if the other available evidence do not prove otherwise.
The fundamental principle behind the consent
Last year, the Delhi High Court held that a sexual relationship with a woman after making her a false promise of marriage amounts to rape. The conclusion was based on the logic that the so-called consent under a false promise of marriage is no consent. It further observed that a man receiving consent to sexual relations under false pretext does not amount to legal or valid consent and saving him from being accused and punished for rape. Widening the ambit of the law, the Delhi Court held that even if the woman is assumed to be a willing participant in their physical union, the fact that the man had no intention of marrying her would make it an instance where consent was given under a misconception, nullifying the efficacy of approval.
Therefore seeing the current position of law, the courts have to be very cautious and careful in coming to the conclusion as to whether the intention of the boy was to marry or not since the inception or merely to satisfy his lust. The court take into factors such as the boy introduced the girl to his family, was introducing the girl as her would-be wife, and brought her mangalsutra or all the positive steps taken by a boy to show his clear and honest intention, but if due to the circumstances which were beyond the control of the boy he could not marry then that does not amount rape.
Kapil Chandna Advocate
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Tags :Criminal Law
![Dr. MPS RAMANI Ph.D.[Tech.]](/img/avatars/my_avatars/84227.jpg "Dr. MPS RAMANI Ph.D.[Tech.]")
State of mind of male person to marry with such a girl or just to satisfy his lust, during indulging in sexual activity with girl is not easily known to anybody as it is his personal state of mind. While after the amendment of criminal act 2013, u/s 114A of Indian Evidence Act, the court shall presume the absence of consent of female, if she states in her evidence that she does not consent and burden of proof is lies on the male to rebut the inference presumed by the court. This law does not provide equality for male and female and an advantage is given to females to misuse the law against the males. Also , I want to add here that 1. Most of rape cases occurred are result of breaking relations between lovers, extra marital affairs, mistake done in young age, so when a female is adult and can understand very well the consequences of sex before marriage ( it does not matter that either the consent is based on the promise of marriage or it is free consent ) then after that, she should be estop by the law to take the plea that she was under misconception of promise of marriage. 2. The reasons is that one can not bind the other person for contingent or uncertain agreement ( which is itself void in its genes by the contract act) and promise of marriage is not a license to do sex in itself under the Indian Laws. 3. The requirement of sex is that both parties are adult and having a sound mind (subject to any living spouse in their relations, which can prosecute to the sex doing parties for other offences like bigamy or adultery etc). 4. Upon basis of well understanding of both members, it can be said that whatever the reason of consent, in actual they have play sex with other freely, with active participation of both and both have enjoy the sex by which both parties should be held liable as co- accomplice. The reason is that, there is nowhere mention that it is an exception to the general law that any active participant to the wrong act can retract his consent afterwards.