Will Sexual Intercourse on a false promise of Marriage amount to Rape? Cases relating to rape and sexual harassment on a false promise o...
Will Sexual Intercourse on a false promise of
Marriage amount to Rape?
Cases relating to rape and sexual harassment on a false promise of
marriage have been growing rapidly over the past few decades. Being a
conservative and traditional society, many women do not report such cases from
fear of being publicly shamed. At the same time, many women in the fast
modernizing parts of India tend to misuse the provisions of law to mentally
harass and seek revenge from their past partners. Therefore, it is very crucial
and important for men as well as women to properly understand the nuances of
law for their own safety. As live-in relationships are on the rise and the
Indian youth is increasingly accepting non-conventional relationships, the
intent and scope of laws are also evolving. So let’s try and understand the
complex interplay between Rape laws and consensual sex in the context of a false
promise to marry.
What is Rape according to the Indian Penal Code,
1860?
The Law
against Rape in India is contained in Section 375 of the Indian Penal Code, 1860.
It provides a comprehensive, exhaustive, and unambiguous definition of Rape.
This means that it covers all the possible acts of rape. Section 375 is not a
gender-neutral provision. According to sec 375, only a man can commit rape, and
only against a woman. In short, any act constitutes rape by a man against a
woman if it involves penetration (either through bodily organ(s) such as penis,
hands, fingers, mouth or through material objects) without the consent and
against the will of the woman. The major issue in rape cases where a false
promise of marriage was made relates to the kind of consent given by the
woman/victim. Further, the section also states that a man can threaten a woman
to perform sexual intercourse with another man, and this will also constitute
rape.
The section broadly construes three types of
rape:
1) Use of
Force: When the act of alleged rape was done by using force when the woman
refused to consent for the act
2)
Statutory Rape: When the victim cannot give consent owing to young age or
underdeveloped state of mind and reasoning.
3) Use of
Fraud: Extracting consent of the woman using deceit or fraud. This can involve
lying about certain facts or making promises without any intention to fulfill
them.
Any act of
sexual intercourse where consent was given by the woman on basis of a false the promise of marriage will be considered rape under Rape by fraud; however, this
is subject to certain legal facts which must be proved in a court of law.
What is the Nature of Consent in sexual
intercourse?
Consent and
will of the woman alleging rape is a central issue in cases of rape. Let us
look at the nature of consent envisaged in section 375:
a) The act
of sexual intercourse was performed against the will of the woman.
b) The act
was done without the express consent of the woman.
c) The
woman's consent was obtained by force, threat (to kill or harm her or someone
else), and duress.
d) The
woman's consent was obtained by misleading her to believe on a fact which the
man knew was not true (such as misleading the woman to believe that the man was
not married etc.)
e) The
woman's consent was obtained by intoxicating her or impairing her decision
making abilities.
f) Consent
given by a female under the age of 16 years (14 years old in case of Manipur)
is legally invalid and therefore any act of sexual intercourse followed on such
consent constitutes rape.
Section 375
has to be read along with section 90 of IPC as well as section 114A of Indian
Evidence Act. The woman need not prove express or implied consent. The court
will presume non-existence of consent in rape cases as per section 114A of the
Indian Evidence Act. Further, section 90 of IPC states that if consent is given
under fear or on a misconception of ‘fact’, then it is not valid consent.
What Is A False Promise Of Marriage?
In cases
where a woman alleges rape on the false promise of marriage, the court has to
primarily ascertain two facts:
1) The
consent was obtained by making the woman believe that the relationship between her and the man will culminate in marriage, that is, there was a promise of
marriage.
2) The man
had no intention to keep the promise.
Further,
according to section 90, a false promise of marriage is not treated as a misconception of fact. A promise is not considered a fact in law.
Through
various judgments, the courts have held that a false promise of marriage means
a promise given by the man to fraudulently obtain the consent of the woman. The
intention of the man is a central issue here. If the alleged offender had every
intention to keep the promise, but could not keep the promise owing to an unforeseen and general change in circumstances, then it will not constitute a
false promise of marriage.
Will Sexual Intercourse On False Promise Of Marriage
Amount To Rape?
Following from above
facts and legal pronouncements of various courts, we can safely conclude that
an act of sexual intercourse on a false promise of marriage will amount to rape
if the man had no intention of keeping the promise but the woman/victim was made
to believe otherwise. Section 90 will not be included to judge the nature of
consent here. Needless to say, the intention of the accused is a matter of
facts and circumstances and will be ascertained by the court. No hard and fast
rule can be given for it and the court’s decision will vary from case to case.
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