IS PRE-MARITAL INTERCOURSE RAPE OR NOT?

India is still largely conservative when it comes to matter of sex and sexuality. The question often comes before the courts of law whether pre-marital intercourse with woman on the pretext of marriage amount to rape. In Indian society virginity is prized and woman who has known to have had pre-marital sex may find it hard to get married.

Pre-marital sex refers to sexual relation between two people prior to marrying each other or any sexual relation a person has prior to marriage. There are also different term have been used including- youthful sex, adolescent sex and young –adult sex.

Views on pre-marital sex are often shaped by religious teaching and belief. The cultural acceptability of pre-marital sex varies between individuals, culture and time period. In India gender differences with pre-marital sex can be linked to virginity. In India a woman may undergo a virginity test on her wedding night where she can be banished by her husband or subject to an honor killing if it is found she is no longer a virgin. Men are not subject to this same test and could get away with having pre-marital sex.

In Mumbai research showed that among college age student 3% of women affirmed having pre-marital sex and 26% of college aged men affirmed having pre-marital sex. According to population council an international NGO, released a working report in 2006 showing similar statistics nationally in India, with fewer than 10% of young females reporting having had pre-marital sex, compare with 15% to 30% of young males. According to the government crime data for 2016, police recorded 10,068 similar cases of rape by “known person on promise to marry the victim.”

India is changing and new generation has different perception view, toward the act which were considered taboo years ago. The people views have changed toward sex and sexuality. A new generation of aspirational, assertive women dream of careers before marriage. It is normal where both person out of their own will and choice develop non consensual physical relationships and many time due to some reason the relationship breakups and woman use the law as weapon for vengeance and personal vendetta, many time out of anger frustration these consensual acts is converted as incident of rape.

There are number of cases before the court of law and various judgments have been passed by courts in favour or against. There are many instances where people cheats, make false promises, lie to women just in order to have sex with them but it cannot be said rape. There for it is very difficult for the judges to decide these kinds of cases. Therefore this requires a clear demarcation between the legal provisions related to these kinds of complaints. We need to emphasis on the legal provision related to these issues.

Mens rea is an essential part of deciding whether an act is culpable or not. Mens rea displays specific interest by the accused for the commission of the crime for which he is charged. The accused must be proven to have knowingly committed the crime and had full knowledge of their action and must have mala fide intent toward the victim. However, there can be certain cases where a person who has the best intention to marry the prosecutrix may not be able to fulfill it due to some unavoidable circumstances. Therefore, a promise made with respect with future uncertainty, due to facts that are not considered from the evidence available to the prosecution, does not always come within the ambit of misconception of fact in the criminal law. It is observed on the number of occasions that the accused had the “clear intention” not to marry the victim from the very beginning. Therefore sexual intercourse under total misconception cannot be treated as consent. Supreme Court advised that in that in these cases it is very important to examine very carefully whether the man actually wanted to marry the victim or had mala fide motive from the start or had made false promise only to satisfy his lust.

This essentially means that if a man can prove that he intended to marry the woman but changed his mind later then it is not rape. It is only consider rape if it established that he had dubious intention from the start but, intention is not easy to prove it leaves such cases to the discretion of judge and also concern that the law can be misused.

Consent is very important fact of the rape section 90 of the Indian penal code defines “consent” known to be given under fear of 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 misconception of fact and If the person doing the act known or has reason to believe that the consent has given in consequences of such fear or misconception.

The Indian courts have operated on the assumption that section 90 IPC is very significant when it comes to the interpretation of section 375 IPC though the definition of consent was given under the Amendments of 2013. It is noted that section 90 may be read with section 375 to hold and accused guilty therefore, if a person commits any sexual intercourse on false promise of marriage with intention to deceive the prosecutrix, it would be considered as ‘without her consent’ within the meaning of the second explanation of section 375 and the accused should be punished under section 376 IPC.

In the case of Kaini rajan v. state of Kerala (2013), the supreme courts held that section 375 of IPC contain provisions of “rape” where the first clause provides that woman is in possession of her senses and capable of giving consent but the action takes place against her will, and the second clause states that the act is done without her consent. The court further observed that the expression without her consent is considered to be an act of reason coupled with deliberation. Though section 90 IPC does not define consent but provides ‘what is not consent’. The question whether there was the consent of the victim was present or not would be ascertained by courts by considering all the relevant facts and circumstances of the case.

Misconception of fact

The ‘misconception of fact’ of fact within the meaning of section 90 reads with section 375 provides that when the accused gives false promise of marriage without his intention to marry and the victim believed that the accused has a good faith and gave her consent for sexual intercourse due to the assurance given by the accused. The act is punishable under the provisions of IPC and would amount to rape.

In the case of Pradeep kumar v. state of Bihar (2007), it was held by the supreme court that the term ‘misconception’ of fact defines under section 90 of IPC is broad enough to include all cased pertaining to misrepresentation of facts, deceit, fraud etc references to which consent is given. Section 3 of the Indian Evidence Act 1872 also provides for intention to be treated as fact. Thus, if the consent of the victim is procured by misrepresentation of facts or fraud then it will be treated as against her will. It is an offence under the provision of criminal law to obtain consent from a person by fraud and misrepresentation of fact. Therefore, if the accused had sexual intercourse with the victim on false promise of marriage, would amount to rape within the meaning of section 375 of IPC.

According to section 114 of the Indian Evidence Act, 1872, in a case for rape under section 375 of IPC, where the sexual intercourse by the accused is proved and the question comes before the courts of law that prosecutrix or not, and she states in her evidence that she did not give consent for the act, the court shall presume that the act was done without the consent of victim. This provision is introduced in the Evidence Act to protect women from the mass atrocities in society.

The description secondly states about the offence of rape without the consent of the victim. Therefore, if an accused had sexual intercourse with the victim without her consent will constitute the offence of rape. Thus, if consent is obtained on the pretext of false promise to marry by the accused will fall within the ambit of ‘misconception of fact’ and the consent so obtained shall be vitiated. Such consent will be treated as ‘no consent’ in the eyes of law and it is the duty of the defendant to prove before the court of law that consent was obtained from the prosecutrix.

In the state of U.P. v. Naushad (2013), the court held that the accused shall be convicted under section 375 of IPC as sexual intercourse on false promise to marry would amount to ‘without consent’ within the description ‘secondly’ of section 375 of IPC. Thus, it is the duty of the defendant to establish the fact that consent was obtained with the meaning of section 90. The supreme court and convicted the accused for the offence of rape under section 376 of the IPC.

The legal position on ‘sexual intercourse on false promise of marriage is not very clear in India. There are various contradictions present in the current law in India. The Indian judiciary has also given various contradictory judgments inn this perspective. However, a strict interpretation of the provision of section 375 IPC states that sexual intercourse with a woman without her consent is punishable as rape.

Therefore there is need for the amendment in the legislation which defines the clear aspect regarding

‘Sexual intercourse with the prosecutrix on the pretext of a false promise of marriage’ as, in the present scenario, the law on this lacks various provisions for the conviction of the accused in cases which lead to his acquittal from the charges of rape.

Whether a false promise to marry comes within the ambit of section 375 IPC?

Consent is at centre of the offence of rape. Based on the nature of the consent or the lack of it, there are three categories of rape in law:

• Rape by force- where consent has been expressly denied; or where the consent has been given under duress or coercion; or where the victim was incapable of giving consent because of the physical or mental state she was in.

• Statutory Rape – where the victim was not in a position to give consent because of age.

• Rape by fraud– where the consent has been obtained by use of deceit

Rape by a false promise to marry is an extension of the third category i.e. rape by fraud. This new offence has been read into section 375 of the IPC by using the definition of the word “consent” from section 90 IPC. According to this definition, consent is vitiated if it is given under a misconception of fact.

Relying on the definition, the courts have interpreted the word “ consent” in the description ‘secondly’ under section 375 i.e. ‘without her consent’; and held that any consent given under the misconception of fact is vitiated and therefore the act becomes an act without consent, thereby making it rape.

Judicial pronouncements

The Indian courts have been challenged several times with the issue that ‘sexual intercourse on the pretexts of false marriage is considered as rape or not? Or whether the consent given by a woman will be considered as valid consent or not in the eyes of law?’ there are various contradiction involved in this issue as various courts opined their different views in it.

In the case of saleha khatoon v. Bihar and ors (1988) the Patna high court observed and held that a consent obtained from a woman under the misconception of fact or by fraud cannot be termed as valid consent in the eyes of law. In this case, consent was obtained from the prosecutrix on the basis of the false promise of marriage with the intention to deceive her and to have sexual intercourse with her. The court observed that such consent given by prosecutrix comes within the purview of section 90 IPC read with section 375 of IPC. The court further highlighted the significance of term ‘consent’ in rape laws and opined that consent procured from a woman on the false promise of marriage would amount to rape within the meaning of section 375.

In Anurag soni v. state of chhattisgarh (2019)’ the supreme court opined that if an accused from the very beginning not intended to marry the victim but gave false promise of marriage to and liu of such promise that the accused will marry her, she gave her consent for sexual intercourse with accused, then such consent would not amount to valid consent and therefore comes within the ambit of the misconception of fact under section 90 of IPC. The court observed that sexual intercourse on the false promise of marriage is also an offence under section 417 of IPC which provides punishments for cheating. Thus, such consent shall not excuse accused from the charges for the offence of rape under section 375 of IPC.

In Prashant Bharti v. Delhi (2013), the court observed that the age of the victim should be taken into consideration to evaluate the issue of consent and to know an indication of how worldly-wise she is, and to what degree she is judged to given her consent based on the belief that the accused will execute his promise.

Conclusion

At all instances, breach of promise to marry after establishing sexual relationship does not simply, in itself, constitute the offence of rape within the purview of the Indian criminal laws. Due to lack of testamentary guidelines, it ultimately depends in the court’s discretion relying on the merit of facts and circumstances in the particular case while deciding the question of rape on false promise to marry.

Mumbai-based senior lawyer and activist Flavia Agnes, however, argues that what we need to keep in mind that many of these complaints comes from socially disadvantaged and poor women in rural areas who are often lured into sex by men on false promises of marriage and then dumped as soon as they get pregnant. She adds that under the present legal system the rape law may be the only recourse they have to claim damages or even maintenance.

That’s why she suggested a separate section under the law to deal with these cases where instead of harsh hail terms, the deceiving men could make to pay damages, maintenance and future security for the child.

Hence, the court should take this into consideration while deciding the matter of pre-marital intercourse. The court must not give license to those who are trying to exploit the innocent girls and have sexual intercourse with them on the pretext of a false marriage.

By Udit Sah, Law Centre-1, Faculty of Law, DU.