a) Introduction When it comes to the law relating to Rape, it is clear in the cases of lack of consent for sexual intercourse viz. 'no means no'. However, the situation gets tricky when the courts have to examine cases when there is consent of prosecutrix but such consent is contended to be no consent, in other words, a case where 'yes' actually means 'no'. This article examines...
a) Introduction
When it comes to the law relating to Rape, it is clear in the cases of lack of consent for sexual intercourse viz. 'no means no'. However, the situation gets tricky when the courts have to examine cases when there is consent of prosecutrix but such consent is contended to be no consent, in other words, a case where 'yes' actually means 'no'. This article examines the law relating to offense of rape in cases where consent for sexual intercourse was obtained on a false promise to marry.
Under Section 375 IPC, rape has been defined as certain sexual acts when committed on a prosecutrix, falling under any of the seven descriptions viz- i) against her will; ii) without her consent; iii) with her consent, when consent has been obtained under fear of death or hurt, iv) where consent has been given by the victim in the wrong belief that the man is her husband, v) when the consent is given when she is of unsound mind or intoxicated and unable to understand the nature consequences of what she is consenting to, vi) consent from a girl under the age of 18 years; and lastly, vii) when she is not in position to communicate the consent.
It can be seen from these seven categories, that consent obtained under the false promise of marriage does not find mention in the provision.
b) Legal Pronouncements
An examination of judgments on this issue shows that prior to 2003, i.e. prior to the decision of the Hon'ble Supreme Court in the case of Uday vs. State of Karnataka [(2003) 4 SCC 46] the general view among various High Courts was that consent obtained on a false promise to marry would not constitute rape. One of the earliest judgments on this issue is that of Jayanti Rani Panda vs. State of West Bengal and Ors. (1984 Cri LJ 1535) where the Hon'ble High Court of Calcutta summarised the law in this regard by holding that consent of a full-grown girl to the act of sexual intercourse on a promise of marriage cannot be treated as an act induced by misconception of fact. The same view was taken in a later decision of Hari Majhi vs. The State (1990 Cri LJ 650, Calcutta High Court). In Mir Wali Mohammad v. The State of Bihar (1990 (2) PLJR 375), the Bihar High Court held that, "Though the lady gave her consent due to the false promise of marriage, she knew what was being asked from her and what she was giving her consent for. Hence, there was no misconception of fact and Section 90, I.P.C. has no application". The courts have therefore held that even applying Section 90 of IPC which states that consent obtained on a misconception of fact is no consent, a promise to marry, not being a fact, would not vitiate the consent so obtained. The courts have held that in these situations, though the act will not amount to rape, the accused may still be charged for the act of cheating under Section 417 of the IPC. (Ref: Maran Chandra Paul vs. State of Tripura (1997 Cri LJ 715 Gau); Lakshmana Naik vs. State (2004 Cri LJ 3913 Kar)). In the case of Araj Sk. vs. State of West Bengal (2001 Cri LJ 416 Cal), the Calcutta High Court held that though the act of the accused in abandoning the girl he promised to marry on her becoming pregnant is highly reprehensible, such conduct by itself did not become a ground for holding the accused guilty of a charge of rape under Section 376, IPC. Though there were some High Court decisions at that time which took a contrary view and held that such consent on the basis of a false promise to marry is vitiated by misconception and therefore, amounts to Rape (Ref: Saleha Khatoon vs. State of Bihar and Ors.(1989 Cri LJ 202).
In the Uday judgment (Supra), Hon'ble Supreme Court took note of various judgments of High Courts. Importing the concept of consent contained in Section 90 IPC, the Hon'ble Supreme Court held that in a case where consent is alleged to have been given on a false promise to marry, if the following two conditions are fulfilled the act can be considered as rape: Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. Here, the Court has in fact examined the general concept of consent to arrive at the conclusion that consent given on a false promise to marry would amount to consent given under a misconception of fact and therefore, such a consent would be vitiated. The judgment also referred to the case of Holman v. The Queen [1970] W.A.R. 2 which states that consent to intercourse may be hesitant, reluctant or grudging, but if it is consciously permitted, there is consent, and to Queen v. Clarence, (1888) 22 QBD 23, which propagated the idea that the proposition of fraud vitiating consent in criminal matters is not true if taken to apply in the fullest sense of the word, and without qualification. In this 1888 judgment, Wills, J. has explained consent obtained through fraud through a situation where consent is obtained on payment of bad money. In that situation, he concludes that it would be childish to say that the woman did not consent. In Uday case, the Hon'ble Court went on to finally hold that this was not a case of rape as there was nothing to show that the Prosecutrix only agreed to sexual intercourse because of the promise to marry, or even that the promise to marry was false from the time of its inception.
Pronouncements Post Uday Judgement
Since in the Uday judgment (Supra), the question of application of Section 90 IPC to such consent was answered in the affirmative, and as vide said decision the meaning of 'without consent' under Section 375 IPC has been widened by the importation of the general meaning of the consent as given under Section 90 of the IPC, hence, after the said decision, the courts have consistently held that consent given under a false promise to marry cannot be regarded as consent, even though it is not one of the circumstances mentioned in Section 375 IPC to be defined as Rape. However, these decisions carved subjective exceptions to this general rule of consent.
In the case of Deelip Singh vs. State of Bihar [(2005) 1 SCC 88], the Hon'ble Supreme Court explained that while a promise to marry without anything more will not give rise to 'misconception of fact' within the meaning of Section 90, a distinction is to be drawn where a representation is deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, and in such a situation, the consent will be vitiated. Therefore, it is to be seen whether at the very inception of the making of the promise, the accused had the intention to marry the victim or if the promise was a mere hoax.
The Hon'ble Supreme Court went on to hold in Yedla Srinivasa Rao vs. State of A.P. [(2006) 11 SCC 615] that what is a voluntary consent and what is not a voluntary consent depends on the facts of each case, and factors like the age of the girl, her education and her status in the society and likewise the social status of the boy have to be ascertained. It is now settled law that a distinction has to be made between the mere breach of a promise, and not fulfilling a false promise. (Deepak Gulati vs. State of Haryana [(2013) 7 SCC 675]).
Though the version of the victim commands great respect and acceptability in rape cases, if there are some circumstances which cast some doubt in the mind of the court of the veracity of the victim's evidence, then, it is not safe to rely on the uncorroborated version of the victim of rape. (Kaini Rajan vs. State of Kerala [(2013) 9 SCC 113]). Applying this principle, the Apex Court in Prashant Bharti vs. State of NCT of Delhi [(2013) 9 SCC 293] noted that since the victim was already married at the time of commission of the alleged offence, and therefore, she, being clearly aware of her subsisting valid marriage with someone else, could not have been induced into a physical relationship with the accused on the basis of a false promise to marry. Since this aspect of assurance stood falsified, the consensual physical relationship between the parties could not constitute an offence under Section 376 of the IPC.
In Vinod Kumar vs. State of Kerala [(2014) 5 SCC 678], the Hon'ble Supreme Court noted that the victim was not a "gullible woman of feeble intellect". Rather, she was a graduate who displayed mental maturity of an advanced and unusual scale in her efforts to get married to the accused. The court found that the victim was aware that the accused was already married and had consulted an Imam to enquire if the accused can convert so that he may enter into polygamy. In such a situation, the court held that it is not possible to convict a person who did not hold out any promise and did not present a false scenario which had the consequence of inducing the other party into the commission of an act. The court likened the victim's beliefs to be a mirage of her own hallucinations, in the creation of which accused has made no contribution, and therefore could not be held culpable.
In the recent case of Anurag Soni vs. State of Chhattisgarh [2019 (6) SCALE 211], the court reiterated the distinction between a promise which is unfulfilled and a promise which is false from the very beginning, as it concluded that the consent in this case was based on a misconception of fact and was vitiated as the marriage of the accused was already fixed to another woman and therefore, the promise given by the accused to marry the prosecutrix was a false promise with no intention of marrying the prosecutrix.
The law on the issue of consent obtained on a false promise to marry was summarized by the Hon'ble Supreme Court in another recent case of Pramod Suryabhan Pawar vs. The State of Maharashtra and Ors. [(2019) 9 SCC 608] where the court held as follows: "To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."
Critical Analysis
While law now appears to be fairly settled that consent obtained on a false promise to marry is not a valid consent, in my opinion, extension of provisions of Section 90 IPC to determine the effect of a consent under Section 375 IPC requires a relook. The said view is being put forward on the basis of the legal position which emerges on an analysis of the statutory provisions, which has not been examined by any of the decisions in detail (although Uday (supra) noted it).
A. Section 375 IPC is a complete Code:
The first and foremost reason, for the view that the law holding that false promise to marriage amounts to rape appears to be erroneous, is that Section 375 IPC which defines the acts which amounts to Rape is a complete code in itself. It enumerates 7 circumstances when a sexual act amounts to rape. These can be categorized into 3 categories :- First – when the sexual act has been performed against the will of the woman; Second – when there is no consent, i.e. cases where consent has been refused for the sexual act; and third – where consent has been given for the sexual act but the same is vitiated because of any of the circumstances enumerated in description Thirdly to Seventhly.
When circumstance 'Secondly' is juxtaposed with circumstances 'Thirdly' to 'Seventhly', it is evident that 'without consent' would mean only and only those case where consent has been refused. This becomes further evident from a reading of Explanation 2 appended to Section 375 IPC. Therefore, 'Without Consent' category of cases would not and should not include cases where consent has been given under a 'misconception'. To read a case of 'consent' as 'no consent' into Section 375 IPC, even when it is induced by a false promise, , militates against the entire scheme of the said provision.
The framers of the law have specifically provided the circumstances when 'consent' amounts to 'no consent' in terms of Section 375 IPC. It is to note that consent for the sexual act on the pretext of marriage is not one of the circumstances mentioned under Section 375 IPC.
The decisions of the Courts are based on inclusion of concept of 'consent' vitiated by 'misconception' as contained in Section 90 IPC. Such import of Section 90 into the reading of Section 375 IPC is erroneous as it is apparent from a reading of both Sections that except for the 'misconception' part, all other facets of consent being vitiated are already covered under Section 375 IPC. This also brings in play another principle of 'Generalia Specialiabus non-derogant' i.e. if a special provision is made on a certain matter, that matter is excluded from the general provision. Since lack of consent and its various circumstances have already been included in Section 375 IPC, section 90 IPC cannot be read into it.
B. Strict Construction Principle
The second reason for this view is that it is trite law that a criminal statute has to be construed strictly. Where the statute is so detailed and explicit, it is not permissible to import the idea of 'misconception of fact' while determining consent under Section 375 IPC. The fact, that an enactment is a penal provision is in itself a reason for hesitating before ascribing to phrases used in it a meaning broader than that they would ordinarily bear. (Ref: Sakshi v. Union of India, (2004) 5 SCC 518). Therefore, it is wrong to enlarge penal statutes by implication or by their extension to include cases which do not fall within the circumstances explicitly mentioned therein.
This broadening of the section and importing of the concept of misconception from Section 90 IPC violates this principle of interpretation of criminal statutes. The provision is in itself a comprehensive code on sexual offences and attempts to includes all circumstances within its sweep. There is no ambiguity and therefore, while interpreting the provision it is impermissible to broaden it further.
In fact the law of misconception also cannot be applied ipso facto to all circumstances, as highlighted in Clarence (supra) where example of consent obtained through payment of bad money was treated as not a case which would amount to Rape. There could be other examples: sexual acts performed on a promise to pay, when since beginning such promise was false (e.g. issuance of cheque from an account which is already closed etc.). Can it be said that since consent in these cases was prompted by a false promise therefore, there is no consent and hence, it is a case of Rape?
C. Vagueness and Subjectivity Principle
This brings us to the third reason for the contention that a false promise cannot be equated to lack of consent within the meaning of Section 375 IPC, which is that such an interpretation has brought in lot of subjectivity and vagueness in applying this particular situation of false promise to marry while examining the cases of Rape. It takes away the definitiveness, which is essential for any criminal provision.
Evaluation of the above case law would show that while determining if consent for sexual intercourse on a promise to marry was voluntary, following factors weighed in the minds of the Court: i) The age of the girl; ii) Her education status; iii) Her status in the society; iv) The social status of the man; v) Her intelligence in understanding the significance and moral quality of the act she was consenting to; v) Length of the relationship; vi) The nature of the relationship between the prosecutrix and the accused (eg. Her love and passion for the accused); vii) Delay in bringing the complaint; viii) Behaviour of the family/parents of the prosecutrix (e.g. in Kaini Rajan v. State of Kerala, [(2013) 9 SCC 113], Hon'ble Supreme Court held that, "there is not even a whisper that they approached the Appellant or his family members for marrying the prosecutrix. They straightaway went to the police station to lodge the report, that too after the birth of the child. All these factors cast a doubt on the prosecution version."); and viii) Marital status of the prosecutrix (e.g. in Prashant Bharti vs. State of NCT of Delhi (2013) 9 SCC 293, the Hon'ble Supreme Court found that as the Prosecutrix was already married to someone else, the assertions made by her that she consented on the belief that the accused would marry her were false.)These circumstances go to show that they not only bring in subjectivity but also vagueness in decision making.
Conclusion
In conclusion, though law as it stands today treats consent obtained on the false promise of marriage as no consent being vitiated due to 'misconception', however, it requires a reconsideration. Such an understanding of consent is not only against the statute, but it is also out of tune with today's societal setup, and takes away from the idea of adult women making their own decisions and being held accountable for the same.
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