Rape or No Rape —That is the Question: An Analysis of Consent on the Basis of a Promise to Marry

While a Division Bench of the Delhi High Court is hearing a challenge to the constitutional validity of the law relating to marital rape, this article aspires to examine another aspect of rape: whether consensual sexual intercourse on a false promise to marry would amount to rape. As per the century-and-a-half old Penal Code1, “consent” or the lack of it is the cornerstone to classify copulation as rape. If one exists, the other disappears.2So, this piece examines the dichotomy in the judicial opinions on the subject.

Sections 375 to 3773 IPC define “sexual offences” and prescribe punishment too. As adverted to above, of pivotal importance for attracting these offences is whether there is wilful consent for the act. In the language of Section 3754 itself, the legislature has specified seven descriptive circumstances when the offence of rape occurs. Of course, consent obtained by threat or coercion or under intoxication cannot be considered consent given by free will. As is evident from a bare reading of the above seven circumstances mentioned in the provision, none of them can be considered “consent” by free will.

It was in Uday v. State of Karnataka[1], the Supreme Court had, for the first time, an occasion to consider the question whether consent given by a woman based on a promise to marry by the man would amount to rape. In that case, the woman and the man were in love with each other, and the woman had consented to sexual intercourse. It led to her pregnancy. While acquitting the accused, the Court held that the question whether consent was given on a misconception of fact was to be decided on a case-to-case basis; after examining several judgments of various High Courts, the Court in Uday6 has held:

21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under misconception of fact. A false promise is not a fact within the meaning of the Code….

While thus holding, the Court has also noted that the issue whether the consent was free or not and the surrounding circumstances of the “consent” have to be examined on a case-to-case basis. The Court, in the end, holds:

25.… In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC7. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception….8

The Court, however, has not answered the question whether “misconception of fact” in Section 90 has to be restricted to circumstances spelt out in Section 375 and whether Section 90, too, applies to circumstances not enumerated in Section 375.9

            Subsequently, in Deelip Singh v. State of Bihar10, the Court has also laid down the test whether at the very inception of his making the promise, the accused held out a false promise to secure the consent. The Court has noted that the phrase “against the will” seemed “to connote that the offending act was done despite resistance and opposition of the woman”.11 The Court has placed reliance on Section 90, and held:

19. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirement of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person given the consent had given it under fear of injury or misconception of fact and the court should also be satisfied … of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology.12

Neither in Uday13 nor in Deelip Singh14 was the consent obtained forcibly. Contrast this with Yedla Srinivasa Rao v. State of A.P.15In that case, the accused had intercourse with the victim forcibly. Then, after impregnating, he pacified her by promising marriage. The conviction was upheld, as the Court held that the intention was not honest from the beginning; he only promised to marry the prosecutrix when she became pregnant. The facts of this case are different to the extent that there was no consent for sexual intercourse; therefore, the circumstance mentioned as “firstly”—against her will—stood satisfied. Coercive element established, the Court ought not have even enquired into the existence of any promise or assurance to marry. It is non sequitur. Respectfully, it is submitted that Court has erred in holding:

17. In the present case, in view of the facts as mentioned above we are satisfied that the consent which had been obtained by the accused was not a voluntary one which was given by her under misconception of fact that the accused would marry her but this is not a consent in law….16

In Deepak Gulati v. State of Haryana17, the woman consented to sexual intercourse on the understanding that the accused would marry her, though “she was conscious of the fact that her marriage may not take place owing to various considerations, including the caste factor”. On his conviction, the accused had served over three years of his sentence before the Supreme Court acquitted him. In that context, the Court has held:

21. 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 understating 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, 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.18

In Kaini Rajan v. State of Kerala19, the accused was acquitted on a reasonable doubt in the prosecution’s case. The Supreme  Court has observed:

12. Section 375 IPC defines the expression “rape”, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her or any person in whom she is interested in fear of death or hurt. The expression “against her will” means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression “consent”. Section 90, though, does not define “consent”, but describes what is not consent. “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. (See State of H.P. v. Mango Ram20)

In Karthi v. State21, as was in Yedla Srinivasa Rao22, to the first instance of sexual intercourse, there was no consent. But later, the accused silenced the prosecutrix with a promise of marriage. Thereafter, several acts of intercourse took place—with her consent. In that backdrop, the Supreme Court has upheld the conviction for rape. Similarly, in State of U.P. v. Naushad23, the Court placed reliance on Section 90 and held:

19. In the present case, the accused had sexual intercourse with the prosecutrix by giving false assurance to the prosecutrix that he would marry her. After she got pregnant, he refused to do so. From this, it is evident that he never intended to marry her and procured her consent only for the reason of having sexual relations with her, which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her consent which was consent obtained under a misconception of fact as defined under Section 90 IPC. Thus, the alleged consent said to have been obtained by the accused was not voluntary consent and this Court is of the view that the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is apparent from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix. He made a false promise to her and he never aimed to marry her. 

More recently, in Pramod SuryabhanPawar v. State of Maharashtra24, while acquitting the accused, the Supreme Court has summarised the law:

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 proportions 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 women’s decision to engage in the sexual act.

 The law regarding “consent” has been followed in Anurag Soni v. State of Chhattisgarh25. In that case, the consent for sexual intercourse was found to be on “a misconception of fact” as understood under Section 90. From the beginning, as it emerged, the accused had no intention to marry the prosecutrix. While making his promise, the accused knew it to be a false one. In Dhruvaram Murlidhar Sonar v. State of Maharashtra26, while allowing the appeal, the Supreme Court has examined the law on the subject and held:

23. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant 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 also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. 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 the misconception created 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. Such cases must be treated differently. If the complainant (sic) had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC27.

Even in Maheshwar Tigga v. State of Jharkhand28, the Supreme Court adhered to the law laid down from Uday29 onwards. But in the facts and circumstances of that case, the Court has held that “the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her….”30 As a result, the accused was acquitted. More recently, in Sonu v. State of U.P.31, the Supreme Court quashed an FIR, on the ground that:

11. (t)here is no allegation to the effect that the promise to marry was given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR.32

Thus, for almost two decades, the law has consistently been that a consent given for sexual intercourse on a false promise to marry would be a consent given on the “misconception of fact” and hence, does not amount to valid consent under Section 90. In other words, it amounts to rape. The Court, in all the above quoted judgments, has not considered Explanation 2 to Section 375, which reads as under:

Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.33

Put plainly, “consent” must unequivocally be for the sexual act, and the basis for the consent is not relevant for the purpose of the section. Further, the word “fact” in Section 90, of which there must be a “misconception”, ought to be of the sexual act, and not some other circumstance or fact. That is, for the offence not to be attracted, the sexual act must be consented to. Indeed, the Court has recognised in KainiRajan34 that “consent” was “an act of reason coupled with deliberation” and that it denotes “an active will in the mind of a person to permit the doing of an act complained of”.35

In our respectful view, if there is free and unequivocal consent for the sexual act—in the absence of any specific legislative mandate—the basis for such free and unequivocal consent, such as a promise to marry, is irrelevant. The intent of the legislature is clear from the second explanation. With utmost respect, when the provision categorically enumerates situations in which consent obtained under either threat or coercion as being no consent, and the section having categorically left out conditional consent, it cannot be said that consent obtained on a promise to marry is not free consent. What is germane to Section 375 is whether there is consent by free will for sexual intercourse, and such consent is not obtained from a girl of less than 18 years of age or such consent is not obtained by threat, coercion or intoxication. When none of these factors are directly attracted, and a consent is given on “promise to marry”, it can hardly be said that such consent is not consent by free will.

For example, in R. v. Flattery36, a nineteen-year-old girl consulted the accused, a doctor, for treatment for an illness. And the accused, on the pretext of giving her surgical treatment, had carnal intercourse. The victim having submitted herself on the genuine belief that she was being treated, the accused was held guilty of rape. Similarly, in R. v. Williams37, when the accused, who was engaged by the victim to give her lessons in singing, had sexual intercourse with the victim on the pretext that he had to perform an operation on her to produce her voice properly. Thus, the victim having submitted herself on this premise but without any intention of having sexual intercourse, the King’s Bench upheld the conviction of rape. In Williams38, the King’s Bench Court placed reliance on the opinion of Branson, J. in Reg. v. Dicken39 thus:

…Branson, J. stated the law in the course of the summing up in the present case in accurate terms. He said: “The law has laid it down that where a girl’s consent is procured by the means which the girl says this prisoner adopted, that is to say, where she is persuaded that what is being done to her is not the ordinary act of sexual intercourse but is some medical or surgical operation in order to give her relief from some disability from which she is suffering, then that is rape although the actual thing that was done was done with her consent, because she never consented to the act of sexual intercourse. She was persuaded to consent to what he did because she thought it was a surgical operation.40

In other words, only when the consent is given for an act, which the consent giver is not knowing to be a sexual act, can the offence of rape be attracted. Such a consent would fall within the ambit of “misconception of fact” even under Section 90 IPC. It is settled law that a criminal statute must be interpreted in a strict manner, and, it is submitted, the law laid down by the Supreme Court regarding “the consent for sexual intercourse on a false promise to marry” as attracting the offence of rape would amount to reading words into the statute—words that do not exist.

Recently, two High Courts, while taking a completely contrary stand on the issue, have expressed a need for the legislature to clarify the issue. The Allahabad High Court, in Harshvardhan Yadav v. State of U.P.41, has noted that till the legislature provides for “a clear and specific legal framework where the accused obtained consent for sexual intercourse on the false promise of marriage”, the Court should continue to give protection “to such women who have suffered on account of false promise of marriage”.42 Conversely, the Orissa High Court in G. Achyut Kumar v. State of Odisha43, while hearing an application for bail, has opined that “the automatic extension of provision of Section 90 IPC to determine the effect of a consent under Section 375 deserves a serious relook. The law holding that false promise to marriage amounts to rape appears to be erroneous”.44

It is submitted that intertwining consent for intercourse with marriage may not reflect the change in societal attitude. In the present day and age, the law recognises a “relationship in the nature of marriage”45 —colloquially called a live-in relationship. It was once frowned upon as morally decadent. O tempora, o mores! So, the interpretation given by the Supreme Court, with marching times and changing social mores, requires a reconsideration. From Uday46 to Sonu47, the law on this aspect has stood like a rock—fossilised, so to say. In an appropriate case, the Supreme Court must revisit the purport of “misconception of fact” in Section 90 for the offence of rape.

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*Advocate on Record, Supreme Court of India.

**Advocate on Record, Supreme Court of India. Author can be reached at amitpaioffice@gmail.com.

1Penal Code, 1860.

2This would not apply to “consent” by a girl less than 18 years of age.

3Penal Code, 1860, Ss. 375-377.

4Penal Code, S. 375.

[1](2003) 4 SCC 46.

6(2003) 4 SCC 46, 56-57.

7Penal Code, 1860, S. 90.

8Uday v. State of Karnataka, (2003) 4 SCC 46, 58.

9Uday v. State of Karnataka, (2003) 4 SCC 46, 59, para 26.

10(2005) 1 SCC 88.

11Deelip Singh v. State of Bihar, (2005) 1 SCC 88, 97, para 12.

12Deelip Singh v. State of Bihar, (2005) 1 SCC 88, 99.

13(2003) 4 SCC 46.

14(2005) 1 SCC 88.

15(2006) 11 SCC 615.

16Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615, 624.

17(2013) 7 SCC 675.

18Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, 682.

19(2013) 9 SCC 113, 118.

20(2000) 7 SCC 224.

21(2013) 12 SCC 710.

22(2006) 11 SCC 615.

23(2013) 16 SCC 651, 658.

24(2019) 9 SCC 608, 620.

25(2019) 13 SCC 1.

26(2019) 18 SCC 191, 202.

27Penal Code, 1860, S. 376.

28(2020) 10 SCC 108.

29(2003) 4 SCC 46.

30Maheshwar Tigga v. State of Jharkhand, (2020) 10 SCC 108, 117,para 20.

312021 SCC OnLine SC 181.

32Sonu v. State of U.P., 2021 SCC OnLine SC 181.

33Penal Code, 1860, Expln. 2 to S. 375.

34(2013) 9 SCC 113.

35KainiRajan v. State of Kerala, (2013) 9 SCC 113, 118.

36(1877) 2 QBD 410.

37(1923) 1 KB 340.

38(1923) 1 KB 340.

39 (1877) 14 Cox, C.C. 8.

40See R. v. Williams, (1923) 1 KB 340, 347.

412021 SCC OnLine All 500.

42Harshvardhan Yadav v. State of U.P., 2021 SCC OnLine All 500, para 30.

432020 SCC OnLine Ori 417.

44G. Achyut Kumar v. State of Odisha, 2020 SCC OnLine Ori 417, para 15.

45See, Protection of Women from Domestic Violence Act, 2005.

46(2003) 4 SCC 46.

472021 SCC OnLine SC 181.