The jurisprudence on the rape on the pretext of marriage is being shaped by judicial precedents across the India. Marriage is considered as sacred union between two individuals – transcending beyond physical, emotional and spiritual bounds. In ancient Hindu laws, marriage and its rituals are performed to pursue dharma (duty), artha (possessions) and kama (physical desires). With such sanctity, marriage is more than a ritual, and accordingly the present criminal jurisprudence invokes Section 90 of the Penal Code, 1860 when the consent for a sexual intercourse is sought on the false promise of marriage.
On the other hand, “men’s rights activists” claims that these charges framed against the accused should be equitable to “false rape cases” for various reasons. It is argued that these allegations are paradoxical and rather counterproductive insofar as rampant acquittals and discharge in such cases dilute the seriousness surrounding the penal provision relating to rape.
Therefore, the term “consent” becomes the subject-matter of a legal deliberation and debate. In terms of Section 90 IPC, consent given by a victim under a misconception of fact would amount to rape within the meaning of Section 375 IPC. However, what is the degree and the nature of this misconception? Is there a legal litmus test to decipher this misconception? Anthropologists and experts can vouch for the fact that wear and tear is an integral part of any relationship, marital or otherwise. In fact, quite recently, Sikkim High Court had in fact extended the benefit of doubt to the accused on the ground of “relationship going sour”1. Therefore, an endeavour is made in this article to sum up the recent developments on the jurisprudence surrounding rape on the pretext of marriage and identify legal parameters which could potentially decipher the key difference between actual inducement leading to rape on the pretext of marriage or not.
To start with, the Supreme Court in Sonu v. State of U.P.2 quashed an FIR under Section 376 IPC between former lovers inter alia on the ground that “there is no allegation that the promise to marry given to the second respondent (prosecutrix) was false at the inception”. The decision, authored by HMJ Dr D. Y. Chandrachud cited Pramod Suryabhan Pawar v. State of Maharashtra3 wherein the following was laid down by the Supreme Court as a litmus test to govern such matters:
16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it.
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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 Sonu v. State of U.P.4 the prosecutrix in her Section 164 CrPC statement admittedly claimed that the physical relations were consensual and were an outcome of a “love affair” between the two, however, on account of the accused promising to marry her. Subsequently, the family of the accused refused to have their marriage solemnised and so did the accused.
The fundamental issue that crops up from the Sonu judgment5 and those alike in genesis in terms of facts and circumstances is the presence of a intimate/love affair between the complainant and the accused. It is seldom the case that the accused has either married someone during the period of alleged inducement or was already in an active relationship with someone else or has married someone else either during or immediately following the refusal to marry which prompts law enforcement agencies to register an FIR under Section 376 IPC.
In this regard, the Full Bench of the Supreme Court headed by HMJ Rohinton Nariman had recently in Maheshwar Tigga v. State of Jharkhand6 arising out of SLP (Crl.) No. 393 of 2020 observed:
10. They were both smitten by each other and passions of youth ruled over their minds and emotions. The physical relations that followed was not isolated or sporadic in nature, but regular over the years. The prosecutrix had even gone and resided in the house of the appellant. In our opinion, the delay of four years in lodgement of the FIR, at an opportune time of seven days prior to the appellant solemnising his marriage with another girl, on the pretext of a promise to the prosecutrix raises serious doubts about the truth and veracity of the allegations levelled by the prosecutrix. The entire genesis of the case is in serious doubt in view of the admission of the prosecutrix in cross-examination that no incident had occurred on 9-4-1999.
The Court further observed in Maheshwar Tigga case7 :
14. Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eye of the law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. (Emphasis added) The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her.
The Supreme Court has, especially in the last decade, passed several landmark decisions in an endeavour to frame policy related jurisprudence on this subject matter. From holding that the victim was not a “gullible woman of feeble intellect” in Vinod Kumar v. State of Kerala8 to reiterating the distinction between a promise which is unfulfilled and a promise which is false from the very beginning in Anurag Soni v. State of Chhattisgarh9 in the Supreme Court has made it unambiguous and coherent that in order to establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established10:
18. … 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.
Therefore, in other words, while the Supreme Court has identified a fine distinction between matters where there is an intention to deceit at the outset, it is paramount that concept of regular wear and tear of relations as otherwise evident from matrimonial matters is required to be infused in this jurisprudence, literally or otherwise.
In the recent past, my professional experience as a defence counsel in various such matters spanning from trial courts to the Supreme Court and as a consultant to a law enforcement agency, has enabled me to identify the following parameters which could further enable the investigating officers from identifying a case which merits a final report in the form of a charge-sheet in contrast to a final report under Section 173 CrPC in the form of a closure report: –
- In some matters, the FIR under Section 376 IPC is in fact an outcome of a regular wear and tear of relationship spanning over several years, including live-in relationships, which as per the Supreme Court in Velusamy v. D. Patchaiammal11, following certain conditions has the sanctity of presumption of marriage. The facts highlighting gradual wear and tear of relations leading to a break-up/refusal to marry could be a relevant identifier with regards to the primary litmus test laid down by the Supreme Court in this regard.
- In most of the matters, the accused (as I would only know their narrative – as a defence counsel) has neither married anyone else nor had any other relationship during the subsistence of their relationship with now complainant. They were neither actively pursuing matrimonial alliances through other online/offline modes.
- In a case, the complainant herself did not sought marriage till a particular timeline after which the accused sought time – and the same resulted in an FIR under Section 376 IPC.
- In one matter, one of my clients who had cleared one of the toughest examinations in the country was prevented from joining and rendering his services on account of the said FIR under Section 376 IPC. In this matter the complainant in statement recorded under Section 164 CrPC had stated that the accused had promised to marry her after clearing his examination and programmes. One could say this was a premature FIR, but be as it may, it is the prerogative of the complainant to choose the time and place of recording of such first information report.
However, an important caveat may be highlighted at the outset. The idea is not to promote closures or highlight one-sided anecdotal experience – but to highlight that the growing number of such acquittals/quashing’s and overshadow matters which would otherwise merit trials and convictions. This also tends to diminish the sensitivity and seriousness with which investigation is to be conducted in such matters, in my personal view and experience.
Its about time that parameters be laid down, withstanding the fact that every criminal case/FIR is unique and peculiar directing the investigating officers to consider, atleast some of the aforesaid while choosing to file a closure, as final reports in the form of charge-sheets, at times are mechanically filed in this regard.