Sexual Intercourse On The Pretext Of Marriage Is Not Rape
keywords – Rape, False promise, Marriage, Section 376, Changing Laws
Introduction
Rape comes from the Latin verb “rapio,” which means “to seize.” In other terms, rape is the sexual attack of a woman against her will using force, terror, or deception. Rape is an assault on a woman’s private parts that is heinous in every manner. It is deemed a terrible crime since it causes great emotional and physical pain that would endure the victim’s entire life. Marriage is defined as a legally recognized union of two people as partners, granting them the right to fulfil their obligations while also satisfying their physical desires. Among Hindus, marriage is associated with various customary rites of consummation.
Consent & Rape
In certain cases, before marriage, couples engaged in consensual intercourse, based on the boy’s false promise to the girl that he will marry her in the future in order to obtain her agreement to satisfy his urge. Many girls ended up submitting to their partners based on a promise made, but if the boy does not keep his promise, the sexual intercourse will be considered rape because the consent was obtained through fraud. Perhaps the consent would not have led to consensual intercourse if such a false promise had not been made in the first place.
Previously, it was thought that in India, consent for sexual activity obtained through a false promise of marriage would not exonerate the boy of allegations of rape. It was thought that the defendant would be found guilty of rape under Section 375 of the Indian Penal Code for promising to marry the victim even though he had never intended to do so. Consent obtained for sexual intercourse through the false promise of marriage can result in a rape conviction. When an accused obtains the victim’s agreement for sexual intercourse under the pretext of marriage but has no intention of marrying her, such consent is said to have been obtained through ‘misconception of fact’ under Section 90 of The Indian Penal Code, 1860.
Case Facts
In this case, Sheela, a 24-year-old lady, was in love with Neeraj, a 28-year-old man. Neeraj never told her about his marriage. Sheela had the idea that Neeraj was a single man. Neeraj told Sheela one day that he loves her. When Sheela asked Neeraj if he would marry her, he simply smiled, thus Sheela assumed he would marry her one day and granted her consent for the relationship. Later, when Sheela asked Neeraj to marry her, he refused, claiming that he was already married and that this was an extramarital affair.
Ratio
The Orissa High Court ruled that having intercourse on the false promise of marriage is not rape. “The law is well recognised that consent gained on a fraudulent promise to marry is not valid,” the court stated. Consent for a sexual conduct under the pretext of marriage is not one of the situations stated in Section 375 of the IPC because the makers of the legislation clearly provided the circumstances when ‘consent’ equals to ‘no consent‘. As a result, the automatic application of provisions of Section 90 of the IPC to evaluate the effect of permission under Section 375 of the IPC requires careful consideration. The statute stating that a false promise to marry constitutes rape appears to be incorrect.”
Commitment Of Rape
A man is deemed to commit rape if he penetrates, inserts, manipulates, and applies his mouth to a woman’s vagina, anus, or urethra, or makes her do so with him or any other person under the circumstances described in Section 375 of the Indian Penal Code. First and foremost, against her will. Second, without her permission. Third, when her agreement is secured by putting her in dread of the death or injury of the person in question. Fourth, she offers her assent believing the man is her rightful husband. Fifth, when her agreement was obtained, she was unable to comprehend the nature and consequences of the act. Sixth, she was under the age of eighteen when permission was gained. Finally, when she was unable to communicate her permission.
As a result of these facts, the accused will be found guilty of rape and sentenced in line with Section 376 of the Indian Penal Code states that the person committing rape shall be given rigorous imprisonment for a term not less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
However, it is also stated in this Section that sexual intercourse based on a promise to marry will be considered rape only if the accused had no intention of fulfilling that commitment from the start.
Sheela has the right to initiate a rape lawsuit against Neeraj since she believed Neeraj would marry her and thus consented to the connection. Neeraj never mentioned his marital status or his desire to avoid marriage. Sheela has the option of filing a case under Section 375 of the IPC. As per Section 90 of the IPC, the consent was gained under the misunderstanding. The consent was secured by deception.
Yedla Srinivasa Rao v State of A.P (2006)
Section 90 of the Indian Penal Code was utilized in the case of Yedla Srinivasa Rao v State of A.P (2006). In this instance, the accused used to visit to the prosecutrix’s sister’s residence on a daily basis and request sexual favours from her. He refused her participation in such activities with him, but he persisted and persuaded her. She fought for nearly three months. He returned to her sister’s house one day, closed the doors, and had sexual intercourse forcibly, without her agreement and against her will. When she inquired why he ruined her life, he replied that he planned to marry her.
Hence, based on this promise, the sexual intercourse between them continued, and he also continued assuring her that he will marry her. She became pregnant one day and notified the accused of her pregnancy. He gave her some pills to abort the child, but they didn’t work. When she asked him to marry her again in the third month of her pregnancy, he said her parents were not on board. She testified that if she had not pledged to her, she would not have consented to the sexual intercourse.
After considering all of the facts, the Court concluded that the consent was provided under the mistaken belief that the accused would marry her. As a result, this consent will be regarded null and void, and the accused will be found guilty under Section 375 of the IPC and sentenced under Section 376 of the IPC.
Anurag Soni v. State of Chhattisgarh (2019)
Another instance was Anurag Soni v. State of Chhattisgarh (2019). In this instance, a pharmacist student, who was aware of the appellant’s engagement to another woman called Priyanka Soni, offered him permission to have sexual contact with her only if he promised to marry her. As a result, the Court determined that, based on the evidence, the accused had no intention of marrying the prosecutrix from the start, and he made a false promise to her in exchange for her agreement to have sexual contact with him, and her consent will be ruled null and void because her permission was based on a misunderstanding of the facts under Section 90.
Conclusion
In our rigidly conventional society, marriage is regarded as a sacred institution, and the girls are socialised to unconditionally give themselves to their husbands. Even Indian law does not consider extramarital sex that occurs without consent to be rape. Since the victims of rape experience both physical and psychological suffering as a result of sexual violence, rape has a lasting impact on their lives. The victim of rape, as well as the victim’s family members, experience the most pain and shame as a result of the crime.
Since the government is required by law to defend each citizen’s life, each case’s facts must be thoroughly examined, along with the available evidence and the surrounding circumstances, before a verdict or decision can be made. Therefore, instances involving a false promise to marry the accused’s intention must be thoroughly evaluated because any poor judgement or error could result in unfairness to the accused.
NOTE: My opinion is based on the above facts and on – Youtube podcast of Respected Jeevan Prakash Sir, AOR, Supreme Court
Written By – Sharmistha pandey
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