Sex After Obtaining Consent By False Promise To Marry Is Rape

Sex After Obtaining Consent By False Promise To Marry Is Rape

 Vagish Yadav,Lucknow

Background

Rape is a horrendous crime and it impacts the victim to its core. It shackles the victim and is a wrong against the society. A welfare state is one where the development of every individual to its best is strived for and frequency of occurrence of such crimes is mitigated. Such crimes are further not compoundable as the loss is irreparable.

Principles like liberty and equality are well founded for the people and progressive rights are developed. Humans have gone far enough to develop the fourth generation human rights with constant development and awareness. Our constitution is also termed as a living constitution for the same reason as the organic nature helps the constitution to grow with the progressive society and to recognize the rights of the individuals and promote their welfare. Hence, crimes brutal and inhuman like Rape lead the society to the downtrodden path and impact the optimistic foundations of the society.

In a conservative country like India where Consented Pre-Marital Sex is frowned upon, the idea of consent is interpreted with scrutiny. In a recent judgment, the Supreme Court enunciated that Sex after obtaining consent by making false promise to marry shall be considered to be rape. The bench comprising L. Nageswara Rao and Justice MR Shah, in the criminal appeal Anurag Soni v. State of Chhattisgarh gave the judgment analyzing the facts and the previous pronouncements of the court.

The court has raised the issue that the Sessions court, while the trial is going on, shall carefully scrutinize whether the perpetrator had the intention to marry or the promise was based on pure intentions of satisfaction of lust. The Sessions trial is the most important stage of a proceeding since the finding of fact and consideration of issue on the same fact is done at this stage and hence lays down the factual matrix of the issue to be further considered by the High Court and the Supreme Court.

In many cases, the court has held that sex between two consenting individuals would not be considered rape as the circumstances were against the assumption of false promise to marry.

Current Issue

In the case of Anurag Soni v. State of Chhattisgarh, the case of the prosecutrix is as follows. The prosecutrix and the accused knew each other since 2009 and there was a love affair between them. In 2013, the accused and prosecutrix met with each other at the home of the accused and despite repeated refusals from the prosecutrix, the accused made physical relation on the pretext of marrying her. Later, the accused told the prosecutrix not to tell about the incident as she was expecting a reply regarding their marriage. After a significant period when no reply came, the prosecutrix told about the incident to her parents who went to the accused’s village and told the parents of the accused about the same.

After about two months of keeping the prosecutrix in dark, the accused married another girl. Thereafter, the prosecutrix filed a complaint. The trial started and statements of witnesses were recorded. The acused pleaded innocence and stated that his marriage was already fixed with one Priyanka Soni and the parents of the prosecutrix pressurized him. The Sessions court held the accused guilty under Section 376 IPC. The appellant preferred an appeal in the High Court. The High Court also held the accused guilty under Section 376 IPC.

Judgments referred by the Court

There are a plethora of judgments regarding Section 376, 90 of Indian Penal Code and Section 114A of the Evidence Act. The judgments referred in Anurag Soni case are as follows:

1.      Kaini Ranjan v. State of Kerela – The court, in this case, stated that the meaning of consent has to be extracted from the factual circumstances. The court further stated that the Section 90 of the Indian Penal Code defines what consent is not. Consent, for the purpose of 375 IPC, requires voluntary participation after the exercise of intelligence based on knowledge of the significance and the moral quality of the act but after having fully exercising the choice between resistance and assent.

2.      Deepak Gulati v. State of Haryana – In this case, the court construed the meaning of consent and clarified the distinction between a mere breach of promise and not fulfilling a false promise. The court held that an accused can be convicted only when the accused had clandestine motives, his intentions were mala fide and from the initial stage itself he had no motive of marrying.

3.      Yedla Srinivasa Rao v. State of AP – The facts of this case are the same as in the instant case. In this case, after being found guilty of causing pregnancy, the accused was granted 2 days by the Panchayat to marry the victim but instead he ran away. The court then held his conduct guilty under Section 376 IPC as the consent was under the misconception of fact.

4.      State of UP v. Naushad – In this case, the accused refused to marry the victim after she got preganant. This conduct itself shows that the accused did not have any intention to marry the victim from the initial phase.

5.      Sujit Ranjan v. State – In this case, the court carefully scrutinized and pointed out that mere promise shall not amount to misconception of fact. The misconception shall depend on the factual circumstances of each and every case.  The court enunciated that the failure to keep a promise may not be an outcome of misconception of fact but because of a variety of other reasons.

Operative Portion of the Judgment

The court, in the case of Anurag Soni v. State of Chhattisgarh upheld the punishment of the accused under Section 376 of the Indian Penal Code. The court, tough, mitigated the punishment from 10 years to 7 years that is the punishment at the time of the occurrence of the crime.

Conclusion

Our society is conservative and orthodox in nature and the condition of women in rural areas to develop to standards of recognition of equality has a long way to go. Section 114A of Evidence Act was introduced with this intention only so as to protection of the rights of the women.

There are a plethora of cases where Section 90 of Indian Penal Code is not taken up. Cases where women are urban and are aware of the rights and enough evidence could not be adduced in order to conclude that the promise to marry was false, Section 376 is not attracted.

Rural women, on the other hand, are vulnerable and hence need protection from such acts. Women in our society are vulnerable and the issue of protection of the rights of the women from hands of the perpetrator has led to a spur of litigation. But until there is social change, the crimes won’t mitigate drastically. The mental attitude towards women needs to change.