Rape is understood as the most physically and mentally deplorable crime in a society and has a deep impact not only on the body but also on the psychological well-being of the prosecutrix. This does not even require any mention that the criminal justice administration system must deal with such heinous crimes sternly and ensure that the perpetrators of such crime are tried expeditiously and are given severe punishment in accordance with the law and the prevailing facts and circumstances of the case.
The term “rape” originates from a Latin term “rapere” which means “to snatch, to grab or to carry off”. Further as per the Roman law “raptus” meant the carrying off a woman by force, with or without intercourse. In India the offence of rape is a serious menace and a challenge for the law enforcement agencies. Rape is the fourth most common crime against women in India and according to the recent report published by National Crime Records Bureau (NCRB) in 2021, a total of 31,677 rape cases were registered across the country that provides a daily average of 86 rape cases per day.
In this article, we shall attempt to examine one of the most contentious kind of cases where the offence of rape is alleged on the premise of failure to fulfil the promise of marriage or in other words rape on account of “false promise to marry”. This particular offence can be understood by observing the interplay between Sections 375 and 90 of the Penal Code (IPC), 1860 that are reproduced below:
Section 375 of the Penal Code, 1860 defines rape
375. Rape.— A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:
(Firstly.)— Against her will.
(Secondly.)— Without her consent.
(Thirdly.)— With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
(Fourthly.)— With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
(Fifthly.)— With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
(Sixthly.)— With or without her consent, when she is under sixteen years of age.
Explanation.— Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Section 90 of the Penal Code, 1860 defines consent known to be given under fear or misconception
90. 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.
Thus, if a woman consents for a sexual act on the premise of false promise to marry, her consent is said to be a consent that is given under misconception as defined under Section 90 IPC and as such it will be considered as sexual act without her consent and shall attract Section 375 IPC. In the recent times, the courts are often faced with a situation where the women and the accused were in a relationship and upon same turning sour, the prosecution under Sections 375/376 is initiated against the accused. While the offence of rape merits a quick registration of FIR and investigation, at the same time due care is required to ensure that the process of law does not turn into a weapon to strike vendetta and vengeance that shall have equally worst impact on the life and liberty of the accused.
False promise and breach of promise
It is imperative to state here that a very cautious and sensitive approach is required when the court is hearing rape cases arising out of any kind of past admitted relationship between the parties. Whether the act of the accused falls on the wrong side of the law, is to be seen by examining whether the case in question is a case of mere a case of breach of promise, where the accused due to his changed circumstances is unable to fulfil his promise of marriage or it is a case where the accused in a mala fide manner made a false promise to marry, to obtain her consent for a sexual act. In order to understand the difference between this fine difference, we can usefully refer to the decision of the Supreme Court in Deepak Gulati v. State of Haryana1, while dealing with an identical issue, has observed as under:
21. … 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.
Thus, in order to sustain a prosecution under Sections 375/376 IPC, the facts of the said case must disclose the circumstances that will throw light on the fact that the accused never had the intentions to marry the prosecutrix and the prosecutrix agreed for a sexual act relying on the said false promise and not otherwise. For example, where the accused is already engaged to some other women and despite that he makes a promise to marry and indulges in sexual act, it can be inferred that the accused never had the intentions to marry the prosecutrix since the inception and the same shall attract Sections 375/376 IPC. In contrast, there could be cases where the accused is not able to marry the prosecutrix due to the change in his life’s circumstances and as such the same shall not attract the offence of rape.
Consensious act and act under misconception of fact
It further needs to be examined by the court whether sexual act was commenced out of the free will and the consent of the prosecutrix, or it was an act that was induced by giving a false promise of marriage. In order to understand, the said difference once can safely quote the decision of the Supreme Court in Uday v. State of Karnataka2, wherein the Supreme Court observed as under:
23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence-on-record. In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the appellant. She was, however, 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 admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.
Thus what also needs to be examined is whether the facts and the circumstances of the case shows if the sexual act was done voluntarily with consent or whether a false promise of marriage was made with an intent to over come the resistance to the sexual act by the prosecutrix. The former situation will not attract the offence of rape while the latter shall squarely attract the offence of rape.
False accusations of rape
The Delhi Court recently observed the alarming surge of frivolous registration of rape cases and has made very serious observation in Vimlesh Agnihotri v. State3 reported in High Court of Delhi wherein it was observed as under:
18. Therefore, people who make such false allegations of rape cannot be permitted to go scot-free. This Court is pained to note that there is an alarming increase of false cases of rape and offences under Sections 354, 354-A, 354-B, 354-C and 354-D only to arm-twist the accused and make them succumb to the demands of the complainant, the order highlighted-
Furthermore, the Court also observed that:
20. … Unless wrongdoers are not made to face the consequences of their actions, it would be difficult to prevent such frivolous litigations. The courts have to ensure that there is no incentive or motive for frivolous litigations which unnecessarily consumes the court’s otherwise scarce time. This Court is of the opinion that this problem can be solved, or at least minimised, to a certain extent, if exemplary cost is imposed on the litigants for instituting frivolous litigations.
Conclusion
Though there cannot be any straitjacket formula to determine whether, the act of the accused will fall under the definition of rape however each case is to be examined on the basis of its own peculiar facts and circumstances. While doing so, the court needs to remain cognizant of the subtle yet significant difference between the false promise to marriage and breach of promise to marriage. If the accused from the very inception never had the intention to marry the prosecutrix or where a false promise to marry was given with an intent to overcome the resistance offered by the prosecutrix, the same shall be attract Section 375 IPC on the other hand if the accused on account of his changed life circumstances in not able to fulfil his promise to marry the prosecutrix, the same shall mere be a breach of promise and will not attract section the provisions of Section 375 IPC.
† Kapil Madan, Partner, KMA Attorneys.
†† Gurmukh Singh Arora, Senior Associate, KMA Attorneys.
The author has acknowledged the work of Akshit Narula and Utkarsh Tiwari for their research on the article.
1. (2013) 7 SCC 675, 682.
2. (2003) 4 SCC 46, 57.