Introduction
There are dissenting views questioning the validity of Consensual sexual intercourse on a promise to marry being termed as rape in the Indian judicial system. Also confronted by allegedly saying this to be an offense fabricated by the judges as the penal code does not mention any provision regarding the same. Intercourse with a false promise to marry where the promise is made solely to deceive and take advantage of the woman can be considered rape.
Legal Aspects of nature of consent
Technically, Section 90 of the IPC defines Consent known to be given Under fear or misconception. Consent is not such consent as is intended by any section of this Code if the consent is:
Conferred 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 error.
However, courts are inclined to invoke the Indian Penal Code, 1860 Section 375 (4), in accordance with which, a man is guilty of commission of rape on a woman if he has knowledge that he is not her spouse, but she gave her consent because she believed that he was another man to whom she is or believed herself to be legally wedded.
Is sex on the promise of marital rape?
Year after year, the courts have spoken varied judgments on breach of promise to marry and rape. Although, there have been times of acquittal of men from rape charges or classification of such instances as cheating by the HC & SC.
The Madras High Court bench in November 2012 said that rape under IPC Section 376 does not include the indulgence in consensual sex with a woman under a false marriage promise within its fold but cheating as defined under IPC section 417 is a punishable offense under the said act. Side by side, in January 2014 the Delhi High Court tagged Premarital sexual intercourse as immoral and averse to religious tenets thus holding that all acts of sex among two adults on a promise to marry is not rape. In this way, the court acquitted the man from rape charges.
HC grants man anticipatory bail
The Bombay High Court refused to accept that an educated, adult woman could term a consensual relationship as rape after the man allegedly promised to marry her but then failed to deliver on that promise.
The court was hearing the anticipatory bail application of a man who entered into a relationship with a 24-year-old woman last March. she had filed a case of rape at the Goregaon police station.
This cannot be rape said Justice Mridula Bhatkar, while granting the man anticipatory bail. You the complainant can say no. You are educated and a major, you have the right to say no… I grant bail in such matters because it is not rape.
Matter is that 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 bad 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 variety among the mere breach of a promise, and not fulfilling a false promise. But the superior, 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, understanding nature and consequences of sexual indulgence. There may be a case where the agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misstating made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, and he was unable to marry her, despite having every intention to do so. Such cases must be treated differently.
Every charged can be convicted for rape only if the court reaches a conclusion that the intention of the accused was malafide, and that he had clandestine intent.
Conclusion
At all instances, a breach of promise to marry after establishing sexual relationships does not simply, in itself, constitute the offense of rape within the purview of the Indian criminal laws. Due to the lack of a testamentary guideline, it ultimately depends on the court’s discretion relying on the merits of facts and circumstances in the particular case while deciding the question of rape on a false promise to marry.
