Rethinking the Tricky Concept of Consent

What amounts to consent which is not a result of misconception of fact in the context of rape? It is a tricky question and if the term “misconception of fact” contained in S. 90 IPC is interpreted too broadly, it may lead to wrongful prosecutions. For example, if a writer named Sidhharth is supposed to be at a book meeting. A girl has read his books and wants to talk to him. At the meeting she meets Sidhharth and they become friends. Soon thereafter, they indulge in sexual intercourse consensually. Later, it turns out that he was a different Sidhharth. Can the girl claim later that she was raped because Sidhharth did not announce that he is not Sidhharth: the writer? No, because she has persuaded herself that he is Siddharth, the writer, herself. But the situation would change if the non-writer Sidhharth was impersonating the writer Sidhharth and he shall be liable for rape u/s. 376 read with s. 90. At the threshold itself, it must be clarified that consent can be given due to several kinds of misconceptions.  The rest of the article deals with cases where consent is induced by a promise to marry in the future.

Cases where the woman alleges rape because the man refuses to marry her are very common. The courts have now consistently held that if the promise to marry was sham from the very inception, only then would it amount to a rape as the woman indulged in sex under a misconception of fact. If it was a mere failure to keep a promise, it cannot be termed as rape. This is sound reasoning. But it is something which can be very difficult to prove. How do you prove the state of mind of the man when he first made the promise to marry? What kind of evidence would be looked at? And what is the degree of burden of proof to be discharged by the prosecution? If the burden on prosecution is to prove guilt beyond all reasonable doubt, it is indeed impossible to prove that a man consistently engaging in sex with a woman did not intend to marry her when he had first made the promise of marriage to her.

Maybe it is time to have a relook at how such cases are dealt with especially when live-in relationships are becoming common and are also being recognised by the courts gradually. Marriage is no longer a sine qua non for getting into a physical relationship. In such changing times, a woman who engages in sex with a man consensually (even if on a promise of marriage) must not be allowed to allege rape later on the ground of vitiated consent. A woman for whom marriage is so important and whose consent is solely dependent on a promise of marriage should preferably wait until marriage since events of the future are uncertain and such hopes may not materialize.

The argument here is not that there should be no remedy available to the woman. As then it may lead to a dangerous trend where men may beguile women with sham promises and leave them anytime they want. We have not reached the stage in society where absolutely open and free relationships can be endorsed by everyone. This article opines that the remedy should be civil and not criminal and most certainly not rape. Rape was earlier an offence relating to property of a man (the property being the woman and the owner being the father or the husband). Gradually the perceptions changed and it is seen today as a violation of the woman’s body and dignity. The woman is denied a choice, she is forced upon and treated like a movable property (in fact a toy to be played with) when she is raped. A case where the woman voluntarily has sex with a man on the promise of a marriage in the future knowing that future events are uncertain and a marriage may not materialise cannot be termed as a rape.

If the society, the courts and women themselves continue to see women as victims who can be enticed by a false promise of marriage into having sex, then why even talk about the right to choose for women. This is because women are being treated as weaker and un-equal partners in sexual relationships. If false promise to marry can turn sexual intercourse into rape surely all false promises turn sexual intercourse into rape, as a woman may have been swayed to consent to intercourse not only by a promise of marriage, but also by a promise that they will forever be together, or would take care of each other, and which may not be performed in the future. But that is not so because promises which are impossible to carry out or cannot be reasonably expected to be carried out are not held to be so as to reasonably cause a woman to give her consent. Also, if the promise is trivial such as a man offering to take the woman out on a date, and before the date, the woman consents to have sexual intercourse with him based on the promise of a romantic evening. And after the intercourse the man refuses to take her out. The law shall hold it to be rape because sexual intercourse was done by the woman under a misconception of fact which the man did not intend on carrying out. By this reasoning, every man would be guilty of rape. Obviously, the law cannot be interpreted in this fashion. So why single out a promise of marriage?

The normalized assumption that promise of marriage makes women give in to sexual intercourse is wrong and archaic and needs to be changed. How can we equate situations like breach of promise to marry with situations where women are coerced into sex or where they are incapacitated when the sexual act took place or where they have sex with somebody they believe to be their husband?

Lastly, I would like to mention the recent Delhi High Court decision where a man was acquitted of the charge of rape (Rohit Tiwari v. State). The woman had alleged rape on the ground that she had had physical relationships with the man only on the basis of the promise of marriage and that the man had hid the fact that he was already married. The Court rightly acquitted the man. However, there is a line in the judgment which the authors find problematic: “If a fully grown up lady consents to the act of sexual intercourse on a promise to marry and continues to indulge in such activity for long, it is an act of promiscuity on her part and not an act induced by misconception of fact.” This is also the most displayed part of the judgment in the media. Promiscuity is defined as “demonstrating or implying an unselective approach; indiscriminate or casual” or “having or characterized by many transient sexual relationships”. It clearly has a derogative implication. It is a statement which attempts to show that she is of a questionable character.

English language is a gender biased language. It is important to make a conscious effort not to use words which may malign the character of a woman. For example, it could have been said that the woman must face the consequences of the decision she made and the engagement in sexual intercourse cannot be said to be an act induced by misconception of fact.

Saema Jamil & Aakash Sharma are Assistant Professors of Law at Lloyd Law College.

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