Know The Law | When Can Sex On Promise To Marry Amount To Offence Of Rape?

Recently, the Supreme Court expressed concern over the 'worrying trend' of initiating criminal proceedings under rape charges soon after a proloned consensual relationship breaksdown.In this explainer, we will dissect the issue of (1) What is a false promise to marry and how it's different from a breach of promise to marry?. (2) When can a promise to marry be considered 'false'? and (3) How can a sexual relationship under the pretext of 'false marriage' be considered as an offence of rape?.The offence of rape is defined under S. 375 of the erstwhile Indian Penal Code (para-materia to S.63 of the BNS). As per the definition, if any man, against the will and consent of a woman, performs the following sexual acts, without her consent, the offence of rape is committed.The definition of 'consent' can be understood from the erstwhile S.90 of the IPC (paramateria to S.28 of BNS) which carves the situation when one may not be giving consent. It states :90. Consent known to be given under fear or misconception- A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or...”The cases of rape under the false pretext of marriage are based on the argument that the consent given by the woman was based on a misconception of fact that the man would marry her. Hence, the argument is that such a consent cannot be regarded as free consent under the IPC/BNS, and hence, the offence of rape is made out.When Would A Promise To Marry Be Considered As False And Vitiate Consent To Sexual Relation?In 2019, the bench of Justice DY Chandrachud and Justice Indira Banerjee in the case of Pramod Suryabhan Pawar v. State of Maharashtra laid down the test to determine when a promise to marry was falsely made to evoke a woman's consent to sexual relations.In the said case, the accused had approached the Court seeking to quash an FIR against him for the offence of rape u/s 375 IPC . The complainant had alleged that she and the accused engaged in sexual relations on the promise made by the petitioner in 2008 to marry the complainant. When the accused failed to fulfil his promise in 2016, an FIR was lodged against him the same year alleging rape."The "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act,” the Court observed.The two conditions laid by the Court to hold when an apparent 'marriage promise' was false and a misconception of fact were: “ (1) 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. (2) The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act." The intention behind such a promise and the proximity of timing between the making of such a promise and giving of consent were considered elemental. The Court also analysed the difference between a false promise and an unfulfilled promise (breach of promise) with the former being relevant in qualifying as a misconception of fact.It was observed : “Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act.” The following table can simplify the observation:False Promise To Marry Breach of Promise To MarryMade to deceive the woman to get consent, with no intention to fulfill it Promise was initially made to fulfill with no intention to deceiveConstitutes a misconception of fact Will not constitute a misconception of fact Vitiates consent in a sexual relationship attracts the offence of Rape u/s 375, 376Cannot attract the offence of rape Breach Of Genuine Promise To Marry Would Not Attract Offence Of Rape Subsequent to the decision in Pramod Pawar, the Supreme Court bench of Justices Ajay Rastogi and Bela M Trivedi in 2023 expanded further on the issue of breach of promise to marry. In the case Niam Ahmed v. State (NCT of Delhi), the prosecutrix who was already married and had three children, developed sexual relations with the accused over time and a child was also born out of the relationship. When the prosecutix got to know that the accused was also married and had children, she continued to cohabit with him...

Know The Law | When Can Sex On Promise To Marry Amount To Offence Of Rape?

Anmol Kaur Bawa

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