Dichotomy between rape and breach of promise in sex in the pretext of marriage cases

Recently the country witnessed a well-deserved closure of the heinous Rape and Murder in the National Capital on 16the December 2012 with the hanging of the four convicts in the case after a long drawn out execution proceeding that was finally carried out and the convicts were finally hanged on 20 March 2020.

India’s Rape Culture has repeatedly come in the limelight especially with the occurrences of occasional rape cases that are highlighted by media houses, this includes 2019 Hyderabad Case, Unnao Case, Kathua Case to name a few.  A perusal of these cases in the face value clearly give the idea that India is facing an emergency when it comes to the safety of women.

In March 2020, Times of India[1] did a story reporting a 353% rise in pending rape trials in Delhi, this creates a worrying picture before the world about the condition of women security in the country. However, scrutiny into the cases reveal that over 40% of cases that are pending in Delhi deal with consensual sex. Another 25% of these cases deal with breach of promise to marry. This makes a total of 65% of such cases pending in courts in Delhi.

BREACH OF PROMISE TO MARRY

In this article we deal with whether breach of promise to marry comes under the ambit of Section 375 read with Section 376 of IPC.

The basic ingredients of Rape as defined under Section 375 of IPC is: -

• Rape by force
• Statutory Rape
• Rape by fraud
• Rape by misuse of fiduciary relationship

Breach of Promise to Marry cases are accommodated under the third category of rape cases.  There has been various debate whether breach in the promise to marry comes under the ambit of rape, keeping in mind in most such cases consent is involved.

In Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra [2] the complainant used to work in the same establishment as the accused, and stated to live together in the government quarter of the accused who was married but was planning to divorce his wife.  Prosecutrix stated in the FIR that she needed a companion as she is a widow.  However. The accused failed to marry the prosecutrix as promised.

The Supreme Court in the instant case allowed the appeal stating that in such cases it has to be observed as to whether accused actually wanted to marry the prosecutrix or had malafide motives and had made false promise to this effect only to satisfy his lust.  Court noted that there is a distinction between mere breach of promise and not fulfilling a promise the later falls into civil law jurisdiction.  In order to attract a criminal offence, the prosecutrix should indulge in sexual intercourse solely on account of misconception created by the accused to marry the prosecutrix. In cases wherein accused has been unable to marry on account of circumstances which he would not have foreseen or which is beyond his control such cases would not attract criminal penalty, e.g. A person refuses to marry the prosecutrix due to family pressure as the girl is from other religious community. In such a case rape will not be attracted due to absence of mens rhea on part of the Accused.

In Anurag Soni v. State of Chhattisgarh [3], Accused’s conviction was upheld by the High Court and the facts were similar to the previous case wherein there was love affair between the accused and prosecutrix.  Accused indulged in sexual intercourse with prosecutrix on the pretext of marriage however despite giving assurance to the family of the prosecutrix he decided to marry someone else.

Supreme Court held that even if the prosecutrix have married and moved on with her life is no ground to acquit the accused, the consent given by her was under the misconception of fact that the accused will marry her in future.

The recent jurisprudence in rape under the promise to marry have earned a fair share of criticism from legal luminaries across the country, many point it as reflection of a patriarchal society that does not trust a woman’s thinking ability. Some have gone to the statute wherein Section 375 IPC is regarded as exhaustive and unambiguous provision and no new meaning can be introduced out of it.

MISCONCEPTION OF FACT

Supreme Court in its various judgements have relied upon Section 90 of IPC which defines as to what is NOT consent.

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.

(Emphasis supplied by the author)

Misconception of fact in Section 90 IPC has been used by the courts to convict the accused. Attention is also laid down upon the Proviso in Explanation 2 of Section 375 IPC.

Explanation 2: Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

However, given the heinous nature of Rape laws and the ability to stigmatise the accused for life and destroy his careers of young men, High Courts should be more proactive in quashing of such FIR’s that appears to be not meeting the ingredients of the Statute and the interpretation laid down by the Supreme Court by placing reliance upon State of Haryana v. Bhajan Lal[4] judgement of the Hon’ble Supreme Court.