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Ashok Yadav (Lawyer)     30 June 2011

False promise of marriage

In the recent time there are many cases of rape FIR regd. by police on the ground that the boy had s*xual relation with the girl and he made a false promise of marriage with her, now he is denying to marry with her.

 

How it is legal under which law police lodge FIR against the accused person, while it is known to all that both were consented for S*x and the girl never opposed for it. Now she is saying it was rape.



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 19 Replies

piyush sharma (Lawyer)     30 June 2011

This is not a case of rape as there is a consent of both the parties.  However as per India Contract Act she could asked for damages for breach of contract to marriage. It is further to be added that she could not force a boy to marry her as any contract which binds the party to marries is voidable contract.

1 Like

Kundan Kr. Singh (Advocate)     30 June 2011

i am also eager to know, it is against the settled penal law applicable to India . In these types of cases the enjoy the relationship and at some time when diff. arises she threaten the boy for dire consequenses. and in some case to teach a lesson to the boy she get lodge FIR against him.
 

piyush sharma (Lawyer)     30 June 2011

I agree with Mr Kundan Kr. Singh

Kiran Kumar (Lawyer)     30 June 2011

yes there has been use of S.376 IPC in this manner.  Certainly there has been a misuse also.

 

but certainly this situation can be compared with a business transaction like Piyush Sharma suggested....if Mr. Sharma's opinion is to be accepted then Rape has to be made a compoundable offence....the criteria would be -

 

Promise to Marry - Sexual Intercourse - Refusal - Compromise - Compensation

 

Human values and Business Transactions are separate things....we can not treat a female like a commodity...there can be instances of misuse of provisions of law but there are genuine cases also....if the female consented to the s*xual relationship under the promise of marriage it does not mean she is to be treated like a commodity then.

 

s*xual intercourse done under false promise does amount to ravising dignity of a female.

 

rest all is a matter of evidence, all depends upon the facts and evidence put before the court....false promise to marry for s*xual intercourse and promise to marry both are separate points.

piyush sharma (Lawyer)     30 June 2011

Mr. Kiran Kumar please go throught the defination of contract in Indian Contract Act. There are three elements of contract one is offer  acceptance and consideration. Here all are present. In that way there is a contract in this situation. Now you are saying that women are not a commodity. If we go by your versen then the muslim marriage should be void because muslim marriage is a contract. For more clarification please read the latest SC judgement title K.P Thinnapa Gauda V State of Karnataka passed by Hon'ble Justice Markandey Kutju.

Saurabh..V (Law Consultant)     30 June 2011

As the "Literal" meaning of the line says, the alleged Promise was false from the very beginning. If it is so, then it can be readily said, that the boy never intended to marry the girl and this promise was mere hoax. In such situations where the girl was of tender age and not in a situation to oppose the advances of the boy and succumbs to the pressure under this promise, such cases fall under S.376IPC.

 

Else, when the girl is a full-grown adult who understands the morality of the act, who understand the possible negative outcomes, who also apprehend the consequences and who was in a comfortable position to oppose the advances of the boy, could never be allowed to take benefit as explained in above case.

 

But irony is that in both above cases, police register S.376IPC. Then either on behalf of or for themself, they take money from the boy.

 

I shockingly express my dissappointment over the pronoucements of many Courts in India where they criminalize both the above. When the girl was doing it, was she enojoying it or not? If the answer is "yes", then how can the same pleasant act be construed as grave and gruesome (as are the cases of forceful rape, gangrape etc.). How can these be equated with forceful rape and similar punishment be awarded?

 

//peace

/Saurabh..V

Saurabh..V (Law Consultant)     30 June 2011

This instance reminds us of the dire need of amendment of the definition of rape and define it properly.

 

My understanding and study of vaious cases and sections says the definition should be"

 

"When a person is subjected to s*xual intercourse by another person, with or without force, and the complainant is in a position, mentally as well as physically, to oppose, deny and forbid the act, but still due to some ulterior objective(s) in mind, allows the aggressor to perform the s*xual intercourse, then such act would NOT amount to rape."

 

Though the above definition does not cover the aspect of penetration, still technically it is complete. It covers the core of such acts.

 

Any act which was at one point of time agreed and mutually enjoyed, cannot be allowed to be used as a weapon against another. Such thoughts are wreakoning our society and provokking the girls to roam freely and trap innocent boys. All they have to do is lure a boy to the bed and then file a complaint of rape. Here it is interesting to note that, Courts could convict the accused even on verbal evidence of the complainant alone as it is regarded similar to other rape cases.

 

 

//peace

/Saurabh..V

Kundan Kr. Singh (Advocate)     30 June 2011

I agree with Mr Piyush Sharma Opinion. Mr Kiran Kumar Ji what is the position of women in Muslim Law. (Muta Marriage)

piyush sharma (Lawyer)     30 June 2011

K.P. Thimmappa Gowda Vs. State of Karnataka

MARKANDEY KATJU, J.

1. This appeal has been filed against the impugned judgment dated 17.9.2004 passed by the High Court of Karnataka in Criminal Appeal No. 149 of 1999.

2. The facts of the case have been stated in the impugned judgment of the High Court and the trial court and we are not repeating the same except where necessary.

3. The trial court had acquitted the appellant in the criminal case, but the High Court reversed the judgment and convicted the appellant under Section 2376 IPC and sentenced him to imprisonment of 7 years and a fine of Rs. 10,000/-, and also sentenced him to imprisonment of 1 year under Section 417 IPC and a fine of Rs. 10,000/-, both sentences to run concurrently.

4. The case of the prosecution is that on 4.1.1996 the appellant raped one Rathnamma aged 18 years, but he assured her that he would marry her and asked her to keep quiet. It is alleged that subsequently also the appellant had s*x with Rathnamma several times and assured her that he would marry her. Rathnamma became pregnant, but the appellant refused to marry her. Hence an FIR was registered in the police station on 4.1.1996 against the appellant under Section 376 IPC.

5. In the trial court the appellant contended that Rathnamma was 20 years of age at the relevant time and she had admitted in her cross-examination that she had s*xual intercourse with the appellant nearly 100 times. It was submitted that this showed that she was a consenting party and hence no case under Section 376 IPC is made out against the appellant. Rathnamma's mother Gowramma PW-11 stated in her evidence that Rathnamma was 18 years of age. Hence she was above 16 years of age and there could be no rape since there was consent.

6. The trial court accordingly held that there was no rape as Rathnamma was above 16 years of age and had consented to the act. Subsequently Rathnamma gave birth to a female child on 25.1.1996.

7. The trial court held that the version of Rathnamma that the appellant gagged her mouth and raped her is not believable. The fact that her child was born on 25.1.1996 means that the conception was in the month of April, 1995. This was disclosed to her parents somewhere in the month of July or August in 1995 and there was a Panchayat which failed.

8. The complaint was filed on 4.1.1996 i.e. just a few days before the birth of the child and not when the s*xual act had taken place. Thus there was a delay of over months in filing the complaint which has not been properly explained.

9. For the reasons given above, the trial court disbelieved the prosecution version and acquitted the appellant.

10. In the appeal filed by the State Government the High court reversed the finding of the trial court and held that the appellant had raped Rathnamma and had promised to marry her. It was observed that since the accused had given the impression that he would honour his promise of marrying her, this fact was not disclosed by her to anybody, including her mother.

11. Admittedly, the appellant has married another woman. We are of the opinion that the appellant deserves the benefit of doubt because on careful consideration of the evidence on record, it cannot be said that the prosecution has been able to prove its case beyond reasonable doubt.

12. In criminal cases, the rule is that the accused is entitled to the benefit of doubt. If the court is of the opinion that on the evidence two views are reasonably possible, one that the appellant is guilty, and the other that he is innocent, then the benefit of doubt goes in favour of the accused.

13. In the present case, the facts are that Rathnamma herself stated in her evidence that she had s*x with the appellant on several occasions. It is also an admitted fact that the FIR against the appellant was lodged just a few days before the birth of Rathnamma's child, which means there is delay of over 8 months in lodging the FIR. The finding of the trial court, which has not been disturbed by the High Court, is that Rathnamma was about 18 years of age at the relevant time. On these facts a view is reasonably possible that Rathnamma had s*x with the appellant with her consent and hence there was 5no offence under Section 376 IPC because s*x with a woman above 16 years of age with her consent is not rape.

14. For the reasons given above, the appeal is allowed. The impugned judgment and order of the High court is set aside

15. Apart from the above, the appellant has stated in an affidavit filed in this Court that he has agreed to transfer two acres of land situated in Palavanahalli due to breach of promise to marry Rathnamma and she has given her consent to accept the same.

16. The appellant is directed to give/transfer two acres of land as stated in the affidavit filed before Court to Rathnamma within three months from the date of this judgment.

................................J. (Markandey Katju)

................................J. (Gyan Sudha Misra)

New Delhi:

April 04, 2011

 


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Kiran Kumar (Lawyer)     30 June 2011

Dear Piyush I stil dont agree with your contentions.

 

the judgment referred by you does not support your point, pls mention any such judgment where SC or any HC has applied principles of Contract Law in case of Rape or Murder or Defamation or any other offence.

 

must notice one thing, there is a difference between Personal law and Criminal law.........as far as Mutta Marriage is concerned (the point raised by Mr. Singh) it is a part of Muslim personal law and is a legalised version of marriage......few may term it to be a kind of prostitution....even I consider it to be absurd.

 

Under Muslim law marriage is a contractual in nature, but that still does not mean one can rape a female under the principles of contract law....it has to be noticed that principles of Indian Contract Act, 1872 does not apply to Muslim marriages, Muslims are goverened by their own personal laws.

but still I do not feel any scope of comparing rape with a valid marriage.

(as far as enforcement of Article 42 of the Constitution is concerned, I will not touch that part since it is not a part of the discussion)

 

you please find out any judgment which says criminal jurispurdence can be set aside by the Commercial laws....Justice Katju acquitted the accused on certain different points.

 

The entire definition of rape vis a vis other provisions have be analysed.

 

Let this discussion be alive....its good one....either I  will learn something from you or you will learn something from me :D :D

 

Hope the discussion will not go astray.

Ashok Yadav (Lawyer)     01 July 2011

I am also agree with the point raised by Mr. Kiran, in the judgement given by Mr. Piyush the S.C. has not interpret the law of contract any where, the court has given its directions not to pay damages in lie of breach of promise but it has given its direction to give two acres land to prosecutrix because the accused was desirable to do so and the court made it a part of judgement the wish of the accused. The court has not held that they were into contract of marriage and to pay damages for breach of promise.


As per my view Mr. Kiran is also right on the point of Muta marriage as it was raised by Mr. Kundan Singh. The concept of muta marriage is governed by personal muslim law and not by the Indian Contract Act.

We are waiting for the reponse of other Ld friends on this topic. Beacuse now a days we are seeing many of the cases of such types in the society, we cant say that the boys were innocent always but in most of these type cases the physical relations were developed with the mutul consent of both they both enjoyed it all the time but when diff. arises why the boy should face the criminal cases and court should consider him as an offender???

Ashok Yadav (Lawyer)     01 July 2011

I am agree with Mr. Saurabh that thedefination of law related to rape should be changed, its time to amend our criminal laws, because the society has changed.

Kundan Kr. Singh (Advocate)     01 July 2011

Mr. Kiran i am agree with ur point but the H.C. of  Gujrat has decided in a matter that the promise to marry is contarct and aggrived person can claim damages in case of breach of promise please go through the matter of Prema Korgaokar vs Mustak Ahmed, Guj 1987.
link for detailed citation https://www.indiankanoon.org/doc/815074/

After reading this citation plese give your opinion.


(Guest)

This reminds me of a story I read. A man offered a woman a million dollars to have s*x with her. The woman agreed. He then offered her only $100. The woman, outraged, asked, do you think I am a prostitute? The man said that part is already decided. Now we only have to decide the price.

These women should either not have s*x before marriage, or if they do have with their consent, then share equal blame for it. I am not an expert, this is just my way of reasoning.


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