A Promise To Marry, Consent, And Rape – Examining The Jurisprudence

"Secondly. – Without her consent."

Explanation 2 provides that consent means an unequivocal voluntary agreement when the woman by words, gesture or any form or verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. The proviso to Explanation 2 provides 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.

On a simple reading of the aforementioned provisions, it seems fairly clear that the acts mentioned in Section 375 (a) to (d) would amount to rape if they are committed without the "consent" of the woman. However, in the relatively recent past, a new species of cases have started coming to court where a woman alleges rape on the ground that she has entered into a consensual sexual relationship with a man on the basis of the man having made a promise to marry her. In such cases, although the consent is present at the time when the intercourse takes place, it is based upon a "misconception".

Section 90 of the IPC provides for consent given under misconception. It reads as under:

"90. Consent known to be given under fear or misconception. – 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 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; …"

In other words, consent given under a misconception of fact is no consent. Thus, the question which often arises in the kind of matters referred to hereinbefore is whether a promise to marry, which is not fulfilled subsequently, upon which consent is given by a woman to enter into a sexual relationship with a man, would amount to a "misrepresentation of fact". If it does, such consent is a nullity and the man is guilty of having committed rape upon the woman; if it does not, then the offence of rape is not made out.

A Learned Single Judge of the Hon'ble Bombay High Court has made some relevant observations about contemporary society in the context of entering into pre-marital sexual relations in the matter of Mahesh Balkrishna Dandane v. The State of Maharashtra.^[1] In the aforesaid matter, the complainant alleged that she was having an affair with the accused and there was a promise by the accused to marry the complainant. The complainant, therefore, readily kept sexual relationship with the applicant. At the relevant time when the complainant and the accused had sexual interaction, the accused told her that he wanted to marry her. Therefore, the complainant did not object to have sexual relations with him. However, many years later, accused decided to marry somebody else. At this point the complainant alleged rape. In the aforesaid facts, the Hon'ble Bombay High Court observed as under:

"6. The case is based on promise to marry and fall out of broke-up relationship. Nowadays, keeping sexual relationship while having an affair or before marriage is not shocking as it was earlier. A couple may decide to experience sex. Today especially in metros like Mumbai, Pune etc., the Society is becoming more and more permissive. Though unlike western countries, we have social taboo and are hesitant to accept free sexual relationship between unmarried couples or youngsters as their basic biological need; the Court cannot be oblivious to a fact of changing behavioural norms and patters between man and woman relationship in the Society so also a fact of ground realities and of late marriages. A major and educated girl is expected to know demand of her body and to understand the consequences of getting into sexual relationship. Today the law acknowledges live in relationship. The law also acknowledges a woman's right to have sex, woman's right to be a mother or woman's right to say no to motherhood. Thus, having sexual relationship with a man whether is her conscious decision or not is to be tested independently depending on the facts and circumstances of each and every case and no straight jacket formula or any kind of labelling can be adopted."

That pre-marital sex is prevalent in the society is a fact. Choosing to enter into a pre-marital sexual relationship is a part of an individual's autonomy. Two consenting adults can't be said to be answerable to anybody other than themselves. The problem only arises when the woman is consenting to such a relationship on the basis of a misrepresentation, such as a promise to marry, which was never intended to be fulfilled. Courts cannot lay down a watertight formula to determine whether an unfulfilled promise to marry would amount to a misrepresentation in a given case. The nature of the controversy demands that the issue is to be determined on the basis of the facts of each and every case. However, an examination of judicial pronouncements enable the Author to identify factors which have been considered by the Courts to determine whether an unfulfilled promise to marry amounted to misrepresentation or not.

One of the earliest decisions of the Supreme Court of India on whether having sexual intercourse by making a promise to marry an^[2]d not fulfilling such a promise is in Uday v. State of Karnataka^[3]. In Uday, the appellant was convicted under Section 376 of the IPC. The Sessions Judge, Karwal, as well as the Karnataka High Court had concurrently held that though the proscutrix had consented to sexual intercourse with the appellant, the consent was obtained by fraud and deception inasmuch as the appellant induced her to consent on the promise that he shall marry her. It was under such misconception that for several months thereafter the prosecutrix, who claimed to be deeply in love with the accused, continued to have sexual intercourse with him till it was discovered that she was pregnant. When the appellant did not agree to the performance of the marriage, at that stage, the complainant lodged a report in the police station pursuant to which investigation was taken up and the appellant put up for trial before the Sessions Judge, Karwar.

In the course of its judgment in Uday, the Supreme Court of India first sought to identify as to what would amount to consent. After referring to a number of English decisions, the Court referred to a decision in Rao Harnarain Singh Sheoji Singh v. State^[4] wherein the Punjab & Haryana High Court observed that there is a difference between consent and submission. Every consent involves a submission by the converse does not follow and a mere act of submission does not involve consent. Consent of a girl in order to relieve an act, of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure.^[5] The Supreme Court of India also referred to the decision of the Kerala High Court in Vijayan Pillai v. State of Kerala^[6] wherein it was inter alia held that consent means active will in the mind of a person to permit the doing of the act of an knowledge of what is to be done, or of the nature of the act that is being done is essential to a consent to an act.^[7]

The Madras High Court in Anthony, in re^[8] observed that a woman is said to consent only when she agrees to submit herself while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptable of what is proposed to be done by another and concurred in by the former.^[9]

Reference was made by the Supreme Court to the decision of the Calcutta High Court in Jayanti Rani Panda v. State of W.B.^[10]. The facts of Panda were similar to those of Uday. The accused was a teacher of the local village school and used to visit the residence of the prosecutrix. On day during the absence of the parents of the prosecutrix he expressed his love for her and his desire to marry her. The prosecutrix was also willing. The accused promised to marry her after obtaining the consent of his parents. Acting on such assurance the prosecutrix started cohabiting with the accused. This continued for several months during which period they indulged in intercourse. Eventually the prosecutrix conceived and insisted the accused marry her. The accused suggested and abortion and agreed to marry her later. In the aforesaid facts, the Division Bench of the Calcutta High Court referred to Section 90 of the IPC and observed that failure to keep the promise on a future uncertain date does not always amount to misconception of fact at the inception of the act itself.

After referring to the English decisions as well as the aforementioned decisions of Indian High Courts on the meaning of consent, the Supreme Court of India in Uday observed as under:

"21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them."^[11]

In the context of Section 90, the Supreme Court observed that two conditions must be fulfilled for its application. 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.^[12]

Applying the aforementioned approach, the Supreme Court examined the evidence in the case before it. It observed that the prosecutrix was a grown up girl studying in a college; and was deeply in love with the appellant. It also noticed that she was aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admitted having told so to the appellant when he proposed to her the first time. The Court observed that the prosecutrix had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. She freely exercised a choice between resistance and assent and must have known its consequences. Furthermore, the Court observed that it had serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. Ultimately, the Court allowed the appeal and set aside the order of conviction.

In Deelip Singh v. State of Bihar^[13] the Supreme Court discussed the meaning and content of the expression "without her consent" in Section 375 of IPC. In the course of the aforesaid discussion, the Supreme Court of India observed as under:

"18. Consent given first under fear of injury and secondly under a misconception of facts is not "consent" at all. That is what is enjoined by the first part of Section 90. These two grounds specified in Section 90 are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries.

19. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is concious of the fact or should have reason to think that but for fear or misconception, the consent would not have been given,. This is the scheme of section 90 which is couched in negative terminology."

In Yedla Srinivasa Rao v. State of A.P.^[14] the Court upheld the conviction of the accused under Section 376 and 417 of IPC. The victim in this case used to attend to cooking in her sister's house in daytime. The accused used to visit the house of the victim's sister during daytime regularly while the victim was alone and persuaded her to have sexual intercourse by telling her that he would marry her. The victim resisted this for some time, but on a later date, the accused committed forced sexual intercourse with the victim against her consent and will. When she protested and accused him of ruining her life, the accused promised that he would marry her. Subsequently, the intercourse continued for some time. When she became pregnant she informed the accused and he gave tablets for abortion in order to get rid of the pregnancy which did not work. The victim insisted that the accused marry her. He claimed that his parents were not agreeing for the marriage and that he would not marry her. The matter was ultimately reported to the panchayat. Before the panchayat, the accused accepted the guilt and promised to marry the victim, but subsequently absconded from the village.

In the aforesaid facts, the Supreme Court examined whether the conduct of the accused fell under any of the six descriptions of Section 375. The Supreme Court observed that clearly the prosecutrix had sexual intercourse with the accused on the representation made by the accused that he would marry her. This was a false promise held out by the accused. Had this promise not been given perhaps, she would not have permitted the accused to have sexual intercourse.^[15] Furthermore, after taking into consideration the evidence in the case, the Supreme Court observed that the intention of the accused was, right from the beginning, not honest and he kept promising the victim that he would marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. The Court observed that the intention of the accused right from the beginning was not bona fide and the victim submitted to the list of the accused, completely being misled by the accused who held out the promise of marriage. This kind of consent taken by the accused with clear intention not to fulfill the promise and persuading the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be consent.^[16]

An important deduction from the decision in Yedla Srinivasa Rao is that if it is established on the basis of evidence that the accused made a promise to marry which he never intended to keep, and if such a promise was the basis upon which the victim submitted herself to the accused's sexual desires, such submission would not amount to consent. The false promise being immediately proximate to the consent, is a relevant factor.

In Deepak Gulati v. State of Haryana^[17] the Supreme Court of India observed that there is a distinction between a mere breach of a promise, and not fulfilling a false promise. There must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may be a case where the prosecutrix agreed 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, or 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 The "failure" to keep a promise with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term misconception of fact, the fact must have an immediate relevance.

The principle of immediate proximity culled out from the decision of Yedla Srinivasa Rao has been clarified further by the Supreme Court in Deepak Gulati by observing that the misconception of fact must have an immediate relevance to the consent being given by the victim, for it to be covered by Section 90 of IPC.

Recently, in Pramod Suryabhan Pawar v. State of Maharashtra^[18] the Supreme Court of India explained the distinction between false promise and breach of promise. After examining the judicial precedents, the Supreme Court concluded as under:

"18. 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."

In the facts of the case, the Court observed that the allegations in the concerned FIR did not indicate that the promise by the accused was false, or that the complainant engaged in sexual relations on the basis of the promise to marry. There was no allegation in the FIR that when the accused promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The decision in Pawar is of seminal importance to the jurisprudence relating to Section 375 and Section 90 of the IPC as it ultimately quashed the complainant in accordance with Section 482 of the Code of Criminal Procedure, 1972.

Despite the long line of judgments of the Supreme Court of India, different High Courts, and English Courts, there is no straightforward answer to whether sexual intercourse committed consensually by a man and a woman on the basis of a promise made by the man to marry the woman, which is subsequently not honoured, would amount to rape. There is no straitjacket formula which can be applied to such cases. All cases have to examined on their own set of facts. But two aspects need to be examined, viz. firstly, whether the promise to marry was a false promise at the time it was made, and secondly, whether such promise was of immediate relevance, or bore a direct nexus to the woman's decision to engage in the sexual act. A comprehensive reading of the case law leads one to the conclusion that even if one of the aforementioned two factors are absent, the offence of rape is not made out. More particularly, when it is a well settled principle of law that the provisions of a criminal statute are to be read strictly, and the benefit of any ambiguity must always be given to the accused.