Nitish Banka

    • Rape and Promise to Marry

    This question very often comes to the mind of a girl who had 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.

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    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 should take into factors such as the whether the boy introduced the girl to his family, was introducing the girl as her would-be wife to his friends, 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.

    Strategy-1

    In a recent case I was working on a strategy in which I adopted a unique strategy to defend my client.

    I asked my client that you find out the background of the girl with whom you got into the relationship, who had falsely implicated my client.

    He hired a detective agency and got us information and thus using the same information, i created a winning strategy.

    The strategy was:

    That the girl was married and was also in a relationship with my client. The problem was she did not disclose this before the court in her complaint. But in bail application she disclosed that she was married.

    On that basis we were able to secure the anticipatory bail for our client.

    Now the next move was to put everything on record?

    How?

    By effective cross examination. We made sure that she admits to marriage. In fact she did 2 marriages and 2 affairs. As a back up we had her own fir in which she admits her marriage.

    Once we get this on record.

    Now the Judgement of Hon’ble Supreme Court will come to our rescue in which it is clear that the prosecutrix who is already married cannot be treated as a person who establishes relationship on misconception of fact ‘promise to marry’

    By-: Adv. Nitish Banka

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