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Ravi Kumar Keshri (Executive)     17 January 2015

Ipc 376 - allegation accepted in bail but denied in 313

In a 376 case (False promise of marriage) , where the victim has denied her medical examination.

The accused has accepted the fact that there was a physical relation between both of them in his bail application. in fact his lawyer didn't deny or made the victim accept that there was no physical relation during the cross examination of the prosecutrix. However during accused statement i.e. 313 the accused said there was no physical relation and the prosecutrix was threatening the prosecute to marry him. so they have brought completely a different version at this last stage. so can the bail acceptance be used during final arguments?

If yes then kindly forward me some judgements and material which can be shown in the court.



 20 Replies

Kapil Chandna (Lawyer at Supreme Court of India)     18 January 2015

No because 313 have no evidentiary value.... Don't worry its just an interaction between the judge and accused .... Kapil Chandna Adv 9899011450

Suneet Gupta (www.vashiadvocates.com)     18 January 2015

As per several judgements of the Supreme Court and High Courts, False Promise of Marriage is not a case under Sec 376 of IPC, which is reserved for rape.

Even if there was a physical relationship, Sec 376 applies only if the s*x was forced and not consensual. If the physical relationship was consensual, then the accused is only guilt of false promise and cheating, not rape.

As per a recent judgement of the Bombay High Court, pre-marital s*x is common these days and all failed relationships are not to be prosecuted under Sec 376. A person cannot be forced into marriage using the threat of prosecution under Sec 376 of the IPC.

CompelledToLearnLaw (Financial Examiner)     18 January 2015

Keeping in mind the Supreme Court's judgments, I strongly disagree with respected Suneet Gupta. IPC 90 clearly defines what ‘consent’ is; consent based on misconception is not consent. A false marriage promise will effectively take out consent from consensual physical activity. Hence, IPC 376 will imply with the help of IPC 90. Conviction is unlikely unless the girl has evidence that the marriage promise was fraudulent at the beginning of the physical relationship.

 

I must say, just like 498a and other dowry/cruelty related laws, this law too is a law from the stone ages. Laws like these should be plucked out of the IPC and the Dowry Prohibition Act and the Domestic Violence Act. They serve no purpose except to harass the man who refuses to become a puppy-dog of a woman or to harass a man when she needs to continue her relationship with her boy friend.

angel (marketing expert)     18 January 2015

Hi Above, 

what if she is giving all the evidences like shopping bills related to marriage in the court but still court is not exhibiting it and there is no medical examination also because the victim denied it. then what is supposed to be done?

Suneet Gupta (www.vashiadvocates.com)     18 January 2015

Dear Sir, as per Sec 376 consent given under misconception of marriage is no consent, i.e. if the woman is falsely made to believe that the man is her lawfully wedded husband, then the consent is false.

However, a promise of marriage is not a misconception. The SC and the Bombay HC have both held that a breach of promise does not amount to rape, as pre-marital affairs can go wrong. The guy might have made a genuine promise of marriage but then realized that they are not compatible. In such a case he can refuse marriage as a promise of marriage is not a contract and is not enforceable under law, being a promise of a personal nature.

As per the HC, If the girl is educated and socially aware, then she should know that promise of marriage is not equal to marriage. Only in cases of the girl being non-educated and from a less aware background will such promises of marriage have a component of coercion or misconception. All cases are to be decided based on the individual facts of the case, but breach of promise is not equal to rape.

CompelledToLearnLaw (Financial Examiner)     18 January 2015

Dear Suneet Gupta ji, I'm quoting from the latest Supreme Court judgement on the issue; if there is a newer judgement, pls let me know. 

 

"... there must be adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry... ...  .... 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- Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives."


Reference; May 20, 2013:

https://judis.nic.in/supremecourt/imgs1.aspx?filename=40427

 

So according to the Supreme Court, she needs to prove that the original promise of marriage was made with evil intentions to deceive her into giving consent to a physical relationship. In other words, she needs to prove that he had no intent to marry her when he first received her consent for the physical relationship. Rape accusations, based on false marriage promise, r still widely used as a harassment tool and in a lot of the cases the boyfriend is kept in the judicial custody for weeks and months before being allowed a bail.

CompelledToLearnLaw (Financial Examiner)     18 January 2015

Just to clear doubts about the importance of IPC 90 to prove the rape charges of IPC 376 in an otherwise consensual physical relationship:

 

"Therefore, a cursory reading of the Section would give an impression as if the offence of rape would not be made out if women above 16 years had consented for s*xual intercourse. However, the impression would be erased if one read Section 375 along with Section 90 of the IPC, which stated: “A consent is not such a consent as is 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.” Giving consent on the false promise of marriage amounted to misconception."

Reference:

https://www.thehindu.com/todays-paper/rape-charges-apply-if-consent-was-given-on-false-promise-of-marriage/article2905648.ece

 

Also see:

 

https://sites.google.com/site/supremecourtcaselaws/womenlaws/sec90andsec376ofipccon

sentobtainedbyplayingfraudtomarryherandcommitteds*xualintercourseandlaterrefusedtom

arryheramountstorapeasherconsentwasobtainedbyplayingfraudonherstateofupappellantv

snaushadrespondentpublishedinhttpcourtnicnicinsupremecourtqrydispasp

 

Due to the sensorship of this forum, the above link cannot be opened because it contains the word 's*x' and, as u can see, this word is censored. So when u copy and paste the link, pls replace the '*" with an 'e.'

Jai Karan Nagwan (consultant)     18 January 2015

Ones both parties were agreed to marry and, accused induces victim to have physical relation and thereafter refuse to marry is very serious offence. If so why it should not be deemed as offence u/s 415, 417 r/with 375, 376 of IPC, as such I disagreewith Ms Suneeta on the point that having relation on false pretext of marriage is not rape. In my view this rape. howeve, I agree that Section 90 has nothing to do here, because this is not a case of consent by threat, rather a case of consent on the false pretext of marriage, as such act of the accused can can not be altogether beyond the scope of section 417, if it is established that accused entered into physical relationship with a motive to carry his Lust on the pretext of false marriage promise, it will be rape. If such deception happens with any girl, accused should never be given an benefits of doubt even. Mr. Ravi please do not relate my last line with your case, it is my personal general thought.

CompelledToLearnLaw (Financial Examiner)     18 January 2015

Brother Jai Karan, how can u agree IPC 90 has nothing to do with here? How else can consensual s*x become a rape under IPC 376 when it comes to live-in relationships? In the instances of consensual s*x, live-in or otherwise: IPC 376 is too high, u cannot climb so high without the ladder of IPC 90. Pls educate urself. How do u think rape charges r framed in a police station in regards to a live-in relationship? How will IPC 376 apply without IPC 90? Pls explain sir.

 

 

My argument is in regards to the current standing laws. Other than from the point of law, I absolutely disagree that s*x based on a false marriage promise should transform into rape charges. I have committed this offense more than enough times; I don’t think I, or anyone else, deserve to go to jail because of it: this is something that u say to sleep with a girl; u also say that u will never leave her, she is the most beautiful girl in the world, u will die without her etc. U tell a lot of lies to sleep with ur girl friend. Is it rape? No. But in India, it is rape.

Jai Karan Nagwan (consultant)     19 January 2015

Reproducing section 90 as:- 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.

 

Here, in the present case,I would say that consent is neither under misconception of facts nor under fear/ threats of injury etc. consent given as per the version of the query is under a pretext of marriage, but at latter after having illicit relation accused refused to marry, hence will attract Sec 415/ 417. please understand promise to marry with an intention not to solmanisation marriage is deception, which is a subtle form of fear/ coercion, as such will attract Sec 375/ 376.

 

Also need to understand that this is not a case of live in as seen from the query. 

Suneet Gupta (www.vashiadvocates.com)     19 January 2015

A promise is an opinion and not a fact - if I give a promise and the other person believes it then he or she is not under a misconception of fact. The man has only promised marriage and not married the woman.

How can there be misconception of fact in such a case. Was the woman under a misconception that the accused had already married her, or did she not understand the difference between promise to marry and actual marriage?

Therefore, the consent is not under misconception of facts but under misconception of opinion. A breach of promise case can apply. As rightly pointed out above, the only time a misconception of fact can happen is when there is 'adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry'.

Also the promise to marriage has to be proved, and the man can just say that there was a consensual relationship between the two, without any talk of marriage, aka a 'one-night stand'.

PS - Personally I have not indulged in such relationships and do not condone or encourage them. But blaming the man only for such relationships is not right. :-)

Jai Karan Nagwan (consultant)     19 January 2015

Initial Onus lies on complainant u/s 101 and thereafter u/s 102.

CompelledToLearnLaw (Financial Examiner)     21 January 2015

Dear Jai Karan, why r u making stuff up? U said,please understand promise to marry with an intention not to solmanisation marriage is deception, which is a subtle form of fear/ coercion, as such will attract Sec 375/ 376.” How does a false-promise-of-marriage cause fear/coercion when having s*x? Brother, IPC 375 explains what rape is: it says s*x without 'consent' is rape. IPC 90 defines what 'consent' is: it says 'consent' given under misconception is not 'consent.' So when someone lies to get consent, it is no consent. Hence, a consensual s*x will become rape when a promise-of-marriage was knowingly made to deceive the woman. If u still don't get it, I cannot explain any more. But pls do not make stuff up out of ur imagination. At least admit when u r wrong.

 

Dear Suneet Gupta ji, plsssssssssssssssss do some research. Consent is defined in IPC 90. If someone obtains consent with misconception, it is no consent. A consent to have s*x, obtained by knowingly making a false promise of marriage, is not consent. So the s*xual act becomes rape because 'consent' is legally taken out of the consensual s*x. If u too still don't get it, I'm unable to explain it any better. What I cannot understand is how will u defend ur client if u do not understand what wrong he is accused of to deserve the rape charge?

 

It's important to realize that a true-promise of marriage, which was later breached, is not a rape: according to the Supreme Court. Only a false-promise, which was KNOWINGLY made to deceive, will get the man convicted of rape.(If so proved)

 

Also see the links below:(to open the links, u need to manually replace the '*' in the word s*x with an 'e' in the URLs below. Because the word s*x is censored in this forum)

 

https://advocatemmmohan.wordpress.com/2013/11/20/sec-90-and-sec-376-of-i-p-c-consent-obtained-by-playing-fraud-to-marry-her-and-committed-s*xual-intercourse-and-later-refused-to-marry-her-amounts-to-rape-as-her-consent-was-obtained-by-playing-f/

 

https://lawandotherthings.blogspot.in/2007/08/does-consensual-s*x-based-on-false.html

 

https://www.thehindu.com/todays-paper/rape-charges-apply-if-consent-was-given-on-false-promise-of-marriage/article2905648.ece

 

https://www.legalera.in/legal-articles/item/7089-does-s*xual-intercourse-on-a-false-promise-to-marry-amount-to-rape?.html

Suneet Gupta (www.vashiadvocates.com)     21 January 2015

Dear Compelled to Learn Law,

Point accepted - If promise-to-marriage is given with intent to defraud and consent is obtained thereafter then it is no consent and Sec 376 might apply. However, please note the following:

  1. First, it has to be proved that consent was given only after promise-to-marry and not willingly. The burden to prove this is on the prosecution. If no force or coercion is proved, then it has to be proved that consent was given only after the promise of marriage. The SC has held that pre-marital s*x is not taboo in India today, and there can be cases of relationships where the girl has pre-marital s*x even without promise of marriage. Some examples include office affairs, and affairs with married men, where the girl knows that the man is previously married, etc.
  2. Second it has to be proved that the promise was made with malicious or mala fide intent, and that the man did not intend to honour the promise when he made it. Again, the burden of proof is on the prosecution. The man can claim that he intended to marry the girl when he made the promise, but did not marry her because of changed circumstances or change of heart. Both the excuses are valid as a promise to marry being of a personal nature is not enforceable by law. Again the SC has held that it is necessary to prove that the promise was false when the man made it. Please refer the case law quoted by you yourself.

Therefore, each individual case needs to be decided based on the specific circumstances, including the social status of the accuser and the accused, and their worldly knowledge. The threat of rape complaint cannot be used to force the accused to marry the accuser, and proliferation of false cases leads to dilution of the law and negligence in actual true cases.

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