Decoding Promise to Marry

Introduction

The concept of promise to marry (hereinafter referred to as “PTM”) has originated from patsy woman in a relationship into a deceptive game which is often now played by either party. It was introduced to protect women who were lured into having sexual relations with men as they were promised that the result of such act will lead to their marriage. In the Indian culture the institution of marriage is considered to be the key to have legitimate sex, however, this prestige, due to its undying prominence has turned into a tool to harass and degrade the lives of the victims and also the men, trapped in this web of promise to marry. As simple as the definition of this crime can be, it is rather difficult to put the cases that fall in the PTM criteria in a straitjacket formula. Every judgment passed by the various High Courts and the Supreme Court of India on PTM indicates that this concept is relatively different in each case, thus, the courts also understand and interprets such cases in their particular facts and circumstances.

Despite the fact that each case is different, there are certain uniform facets to this concept which need more scrutiny. The understanding of these smaller factors helps in getting a holistic view about what this crime constitutes and what are the elements that fall into this web which can lead to ones’ incarceration.

In simpler terms, promise to marry means that a boy performs rape on a girl, by making her believe that he will marry her after sexual intercourse. The main ingredient that makes or breaks a case falling in this category is that of consent, age and maturity, time or duration of the relationship, financial capacity of the parties along with the intention of the parties.

Rape and promise to marry: Where does consent stand?

PTM, rape and consent are intertwined when we take into consideration a case that falls within the ambit of this penal offence. Rape is an assault on the mind, body and privacy of the victim.¹ Courts have time and again observed that only because physical relations were established based on a promise to marry, the same would not amount to rape.

6. … For the offence of rape to be attracted, the following conditions need to be satisfied: first, the accused promised to marry the prosecutrix solely to secure consent for sexual relations without having any intention of fulfilling said promise from the very beginning; and second, that the prosecutrix gave her consent for sexual relations by being directly influenced by such false promise of marriage.²

What is consent?

The concept of consent has been given under Section 90³ of the Penal Code, 1860 (IPC)⁴. It provides that any consent given under a misconception of fact, would not be considered as a valid consent, so far as the provisions of Section 375⁵ IPC are concerned which will thus amount to rape.⁶ In simpler terms to establish that consent was given there must be a choice between resistance and assent.

To interpret the concept of consent one has to note that there is a stark difference between rape and consensual sex.⁷ Under what circumstances is consent given has to be inquired into. When the concept of consent is deliberated upon, a major argument that is brought to the fore is that there was misconception of fact, thus, the consent was not a valid consent.

What is misconception of fact and can it be attributed within the category of decisiveness?

In this aspect, courts have taken a view that failure to keep the promise on a future uncertain date does not always amount to misconception of fact at the inception of the act itself.⁸ The above view can be better understood with an example, say, if a full-grown woman consents to the act of sexual intercourse believing that it will culminate into her getting married and further continues to indulge in such activity till the time she becomes pregnant, the same cannot be considered that there was misconception of fact.⁹ In the landmark judgment of Uday v. State of Karnataka¹⁰ the Court elucidated that misconception of fact is a promise made by the accused to elicit consent of the victim with an ill intention at the outset.

While misconception of fact is to be associated with ill intention to hold a man guilty of PTM, there is another precarious defence sought by either party that is, promise.

Whether there is a distinction between breach of promise and not fulfilling a false promise?

Breach of promise has an intervening factor attached to it. In simpler terms, due to certain intervening circumstances¹¹ like objection from the families, mutual misunderstanding or incompatibility which could either be physical or psychological,¹² the promise to marry cannot be fulfilled. This breach of promise is often misunderstood as not fulfilling a false promise which further leads to registration of a first information report (FIR). A mere breach of promise cannot be said to be a false promise.¹³ A false promise when scrutinised by the Court further helps in unfolding the ill intention of the accused. Thus, a consent is not a consent when obtained with an ill intention from the very beginning, this act of obtaining consent with a polluted mind of satisfying the lust can be called as rape.¹⁴

Emphasis has been provided on the ill intention of the man who has been accused of PTM. Ill intention is the primary factor in PTM cases which has been pointed out by the courts, however, it is in some way difficult for the courts to discern the intention by just taking into account the statement of the prosecutrix. It is the subsequent actions that are noted by the courts, for instance when the accused flees right after confrontation.¹⁵ Thus, the Court factors in other strands which were circumambient to the relationship.

Factors taken into account by the courts while adjudicating

(a) Age of the woman: Since consent is an act of reason which involves deliberation of right and wrong the age of the prosecutrix alleging PTM is always taken into account. The maturity to understand one’s actions is an important criterion. For example, a woman who is married and is a mother of three children is expected to know the consequences of her actions if she indulges in a relationship other than her marriage.¹⁶ On the other hand, in cases involving a minor girl the courts take a sterner approach. It was the observation of the Calcutta High Court that a minor girl is expected to be tender and susceptible to guiles or false promises,¹⁷ thus, sexual intercourse on the promise to marry is nothing but rape when a minor is involved.

(b) Educational qualification of the woman: The intention behind criminalising PTM was mainly for those women who come from an underprivileged background or who belong to the Scheduled Tribe or Scheduled Caste, or those who have less resources and are easy to allude. Thus, one factor that the Court keeps in consideration while deciding the case is the educational qualification of the woman and also puts emphasis on the point that, was she capable enough to understand¹⁸ the intention of the accused or not. It is evident from judgments wherein the courts often presume that the education of the prosecutrix provides her the capability of weighing the pros and cons of her actions.¹⁹

(c) Duration of the relationship: In a long-drawn relationship especially when parties are living together there is an implied consent regardless of their desire to convert it into a marital bond.²⁰ The Supreme Court has even held that a relationship lasting for one year is a good enough period to know whether there is a false promise to marry or not.²¹ In another case the Supreme Court noted that it is inconceivable for the victim girl to keep meeting the accused or maintain a prolonged relationship with him in the absence of consent on her part.²² The significance of duration comes in direct connection when consent is discussed by the courts. In some cases the duration could be as short as 1 year²³ on the other hand it could be more than 5 years,²⁴ wherein the relationship turned sour which further led to lodging for an FIR by the woman. In instances where the prosecutrix alleges PTM at the initial stages, the Court observes the number of times the parties met.²⁵

(d) Relationship turned sour: In most cases nowadays whenever a relationship hits a rough patch there are misunderstandings and different ideas about life, the relationship turns into a battle wherein more often than not the man in the relationship is accused of this penal offence.²⁶ There are instances that cast doubts on the veracity of the allegations that are made by the female victims. The courts while keeping in mind the unseemliness has also held that the criminal machinery cannot be misused to treat each breach of promise as a false promise.²⁷

Conclusion

The debate on promise to marry runs at various different levels. Mainly this penal law is made to protect women who are cajoled by the men. For some, this law is a great way to punish one’s partner in a dead relationship. While for some this law raises questions on the patriarchal system which intends to direct the society into believing that sex is only permitted after marriage. While determining court’s view on this subject, one aspect that cannot be ignored is that a breach in promise cannot be put on the same page as rape. PTM as a penal offence has two sides. One which is what it is supposed to do, that is, protect the woman who has been lured into the web of lies. The other side which is also observed by the Supreme Court is that it has now become a growing trend to avenge their partners in a way which leads to incarceration.