The presence or absence of free consent is imperative while determining the offence of Rape. Any sexual intercourse without a valid consent is Rape. The word ‘consent’ can be understood as permission to do or abstain from doing something. In other words, consent simply means permission.
Under the law, a valid consent is only the one given freely, without any kind of external pressure or misconception. Consent acquired out of threat, misconception, or any other unlawful means cannot be construed as free consent and is therefore not valid. Hence, sexual intercourse without valid consent is rape.
It is often the case where a man makes promise to a woman that he would marry her. The woman believing on such promise gives her consent for sexual intercourse, and later on the man doesn’t stand by his words. Now, in such cases, the consent given is free, but was only given believing the promise of marriage to be true. Is the consent acquired by misconception in such cases? Would this amount to rape? We must look at the law of the land and judicial pronouncements to answer these questions.
The Indian Penal Code in its Section 90 talks about consent under fear or misconception. The provision states:
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.
The provision lays that the consent given by misconception of a fact is not really a consent. But what is misconception anyway?
Misconception simply making someone believe in a lie. Therefore, making a false promise to marry counts as misconception and the breach of such promise after sexual intercourse would amount to rape, but not in all cases.
Rape has been defined in Section 375 of The Indian Penal Code, 1860. The provision states that a man is said to have committed rape, when he has sexual intercourse with a woman:
It can be understood from the provision that consent is of utmost importance, but mere presence of consent is not enough to determine whether rape took place or not. The consent must be freely given and should not be acquired by misconception.However, breach of promise to marry been no where mentioned in the provision, giving rise to various judicial pronouncements.
The Hon’ble Supreme Court in the case of Deepak Gulati v. State of Haryana (2013) 7 SCC 675 held that
“Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where 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, 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 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.”
The Hon’ble Apex Court further held that
“Hence, it is evident that 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, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made 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”. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.”
In the above case, the accused had all intention of marrying the victim but was unable to do so due to unavoidable external circumstances. As the circumstances was not in control of the accused and he had all intention of marrying the victim had the circumstances not been such, the consent of the victim cannot be said to have been given under misconception of fact.
It is also to be noted that if the victim would consent to have sexual intercourse without a promise to marry. In the case of Yedla Srinivasa Rao v. State of Andhra Pradesh (2006) 11 SCC 615the accused forcibly ravished the victim and later promised to marry her, convincing her to not lodge a complaint. The victim agreed to marry him and soon became pregnant with the child of the accused. The accused through his actions showed no interest in marrying the victim and later absconded when the village panchayat ordered him to marry the victim.
The Hon’ble Supreme Court observed that the victim in this case would not have given consent to the accused to have sexual intercourse with her without anticipating marriage. The accused had no intention of marrying her since the beginning. Therefore, the consent of the victim was acquired out of misconception under Section 90 of the IPC, and the accused was convicted for rape and punished under Section 376 of the IPC.
It is important to note from the above judgement that the consent of the victim should be solely based on the promise to marry for degerming the offence of rape. If the victim would never consent for sexual intercourse without a promise to marriage, then the consent is purely out of misconception of fact.
If a couple engage in sexual intercourse and sometime during their relationship the accused to promises to marry the victim but later on breaches it, the same would not amount to misconception of fact.
In the case of Sultan Ranjan v. State the victim was in a relationship with the accused and sometime during the relationship the accused promised to marry her. Later on, the accused did not make good on his promise and the victim filed a case alleging that the accused acquired consent out of misconception of fact.
The Hon’ble High Court of Delhi observed that the parties were in a relationship and engaged in sexual intercourse out of love and affection. The consent was already given even when promise to marry was absent and therefore held thatthe same cannot be termed as misconception of fact.
The Hon’ble Court further held that whether consent is free or given under misconception of facts depends on case to case, one must consider the facts of the case meticulously in order to determine this issue. The failure to fulfil promises on an uncertain future date may not always amount to misconception of fact.
Whether breach of promise to marry amounts to rape or not would depend on the facts of each case. Facts must be studied meticulously to determine this issue, and these factors must be taken into account while making the decision:
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