Rape On False Promise Of Marriage Can't Be Presumed Merely Because Accused Married Another Woman After Sex With Prosecutrix : Kerala High Court

The Kerala High Court has delivered a noteworthy judgment explaining when sex on the promise of marriage can amount to rape. 

Setting aside the conviction of a man for the offence of rape on false promise of marriage, the Court clarified merely because the accused contracted another marriage immediately after the sexual act with the victim, it cannot give rise to the presumption of lack of consent.

"Merely for reason that the accused contracted another marriage immediately after the sexual act with the victim cannot give rise to the presumption of lack of consent"

Further, the High Court has held that non-disclosure of material facts by the accused affecting the consent would amount to violation of a woman's sexual autonomy. If marriage was uncertain, accused is bound to disclose the same to the woman.

After a comprehensive analysis of the relevant law, a Division Bench of Justice A.Muhamed Mustaque and Justice Kauser Edappagath observed that the legal position on the issue was clear. 

"The material facts known to the accused if not shared with the woman at the time of committing the sexual act, certainly would encroach upon her right to protect her decisional autonomy. Section 375 of IPC clearly envisages any violation of sexual decisional autonomy as an offence."

"If he was not certain about the marriage, he is bound to disclose that fact to the woman. If such fact was not disclosed, consent may fall under the category of 'misconception of fact' and the consent would be vitiated under the category of misconception of fact as referred to in Section 90 of the IPC", the Court held.

The Court was dealing with an appeal challenging a judgment convicting the appellant for the offence under Section 376 of IPC (rape). The trial court had sentenced him to life imprisonment. The prosecution case was that the victim was physically exploited by the appellant. 

The appellant and the victim were relatives and in a relationship for the past 10 years.  It was argued that the appellant had sexual intercourse with the victim on three occasions against her will. Although there was a preparation for their marriage later on, since there was resistance from his parents, he married another woman.

However, the victim later deposed that it was not a case of a forcible sexual act against her will but a sexual act on a promise to marry where the consent was implicit and this was recorded by the Sessions Court as well.

The High Court was posed with the following questions: 

(i) In what circumstances does sex on a promise to marry become rape?

(ii) Does the law postulate determination of the criminality of the sexual act in the context of 'consent' on the premise of inviolability of sexual autonomy?

(iii) Does the law contemplate categorising a sexual act based on consent only on the understanding of the woman?

The bench remarked that the consent of a woman on a promise to marry is an 'enigma for the prosecution to prove' while pointing out that the statutory provisions of the offence of rape in the IPC are not gender-neutral.

"A woman, on a false promise of marrying and having sexual relationship with a man, with the consent of the latter obtained on such false promise, cannot be punished for rape. However, a man on a false promise of marrying a woman and having sexual relationship with the woman would lead to the prosecution's case of rape. The law, therefore, creates a fictitious assumption that the man is always in a position to dominate the will of the woman."

Therefore, it was emphasized that the understanding of consent has to be related to the dominant and subordinate relationship in a sexual act.

Further, the Court observed that the point of guilt in a case of false promise of marriage is linked to the state of mind of the accused at the time of committing the sexual act.

Therefore, while it can be easily proved that if the accused had no real intention to marry, the victim's consent is a misconception of fact, it becomes problematic when the accused might have had the intention to marry but was not sure whether the marriage would take place or not.

In such cases, if the accused had not disclosed full information to the prosecutrix regarding the factors which would hinder the impending marriage with her, the question is if the Court can hold that the woman's sexual autonomy had been violated. At this juncture, the Division Bench speculated if the woman would have consented had the accused disclosed information about the chances of marriage.

The Court was certain that the sexual autonomy of a woman to decide upon her body is a natural right and part of her liberty and that the idea of the legislature is to protect her sexual autonomy since the law presumes a man's position to subordinate the decisional autonomy of a woman. 

Therefore, it was held that if he was not certain about the marriage, he is bound to disclose that fact to the woman.

"If such fact was not disclosed, consent may fall under the category of 'misconception of fact' and the consent would be vitiated under the category of misconception of fact as referred to in Section 90 of the IPC."

Further, it was found that sex on a promise to marry will give rise to the presumption under Section 114-A of the Indian Evidence Act as evident from the reference under Section 376 (2)(f) IPC to a male in a position of trust towards the woman. This clearly indicates that a sexual act on a promise of marriage would give rise to the presumption under Section 114-A of the Evidence Act as in every sexual act based on a promise to marry, there exists an element of trust.

However, it was clarified that to give rise to the presumption under Section 114-A, the woman has to state in her evidence that the promise was false with necessary elements at the time of the sexual act or has to state that non-disclosure of material facts affected her consent.

"It is only when foundational facts are disclosed to show false promise or non-disclosure of material facts, the presumption under Section 114-A of the Indian Evidence Act is attracted. Once foundational facts are disclosed in evidence, unless and until disproved, the presumption is that of the guilt of the accused."

The Court also elaborated that a combined reading of Section 90 of the IPC and Section 114-A of the Indian Evidence Act gives the following proposition of law in the context of a sexual relationship on a promise to marry:

i. Law presumes lack of consent when a woman states in evidence that she did not consent, if the prosecution is able to prove sexual intercourse by the accused. 

ii. This presumption is available in favour of the prosecution if the consent was obtained in any of the circumstances narrated under Section 90 of the IPC. 

iii. The woman must state in evidence the foundational facts constituting elements for false promise or non-disclosure of materials facts.

Therefore, merely for the reason that the accused contracted another marriage immediately after the sexual act with the victim cannot give rise to the presumption of lack of consent.

The Court noted that the sexual act committed by the accused was with the real intention to marry the victim and he could not hold onto his promise only due to resistance from his family.

Therefore, in the absence of any other evidence on the side of the prosecution, the conduct of the accused can only be treated as a breach of promise.

"We cannot ignore the social circumstances of the parties. The lack of consent has to be stated by the prosecutrix. The victim and accused were in a love relationship for more than ten years. The sexual act referred to only occurred just before the preparation for the marriage was made. The prosecution evidence itself would show that there was resistance from the parents of the accused to accept the marriage without dowry. That would show that the sexual act committed by the accused was with real intention to marry the victim and he could not hold onto his promise due to resistance from his family.

In the absence of any other evidence on the side of the prosecution, the conduct of the accused can only be treated as a breach of promise. In light of the discussions, we are of the view that the accused is entitled to benefit of doubt as the prosecution has failed to prove the sexual act was on a false promise to marry or the consent was obtained by non-disclosure of material facts".

As such, the appeal was allowed, thereby setting aside the impugned judgment of conviction and sentence. The appellant was accordingly acquitted and directed to be released and set at liberty forthwith if he is not otherwise required.

Case Title: Ramachandran @ Chandran v. State of Kerala & Anr

Citation: 2022 LiveLaw (Ker) 161

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