New Delhi: The Madhya Pradesh High Court has ruled that a married woman cannot claim her consent for sex with another man was taken under the garb of a false promise of marriage, while quashing a rape complaint.
In its 10 February ruling, a bench of Justice Maninder S. Bhatti said, “..the apex court as well as this court postulates that when the prosecutrix is married lady, and therefore, her consent for physical relationship on the garb of false promise of marriage cannot be brought within the framework of the consent obtained on the basis of ‘misconception of the fact’ (sic).”
Section 90 of the Indian Penal Code, 1860, deals with consent or the lack of it and Section 375 defines rape and the punishment for it.
Several times, the Supreme Court and high courts across the country have turned to a conjoint reading of IPC sections 375 and 90 to hold that it is rape if a man has sexual intercourse with a woman without her consent.
Laws on consent, rape & ‘false promise of marriage’
IPC Section 90 says that “consent” will not be considered valid consent if given by a person “under fear of injury” or “under a misconception of fact”. Similarly, Section 28 of the Bharatiya Nyaya Sanhita says, “A consent is not such a consent as is intended by any section of this Sanhita 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.”
Under the provisions, consent given by someone under 12 years of age, one unsound of mind, or intoxicated will also be vitiated. The rationale behind including the categories is that if someone consents without understanding the consequences or the nature of the act to which someone is consenting, it is deemed “no consent” in the eyes of the law.
The offence of rape has been defined under IPC Section 375 to mean rape by a man who has sex with a woman, either against her will or without her consent, among other categories. Even if there is consent, such acts will amount to rape if the person consented in fear of death or of being hurt.
Similarly, if a man knows he is not the husband, and the woman gives her consent believing he is the man who she married or believes herself to be married to, or when she is intoxicated, underage, or of unsound mind at the time she gave her consent, the consent will not be deemed valid.
Section 375 also defines consent as an “unequivocal voluntary agreement when the woman, through her words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act”. It specifies that a woman who does not physically resist the act of penetration shall not—because of that fact—be regarded as consenting to the sexual activity.
In the Convict vs State Of Tripura (2019), the Tripura High Court bench of Justice Sanjay Karol ruled, “The corollary—which can be fairly deduced upon a conjoint reading of the afore-mentioned sections—is that an offence of rape would be deemed to have been committed if a man has sexual intercourse with a woman without her consent. A consent obtained under misconception of fact would not amount to a consent within the purview of Section 90 IPC.”
Since Section 90 IPC states that consent obtained under “misconception of fact” would not amount to valid consent, the Supreme Court in several rulings, such as its 2013 decision in Kaini Ranjan vs. State of Kerala and its 2019 ruling in Anurag Soni vs. State of Chandigarh, said that making false promises to marry someone or to obtain their consent for sexual intercourse could constitute rape in some cases.
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‘Misconception of fact’, current case & judgment
The Supreme Court dealt with ‘misconception of fact’ for the first time in Uday vs. the State of Karnataka (2003). It ruled that for IPC Section 90 to apply in cases, such cases must fulfil two conditions.
“Firstly, it must be shown that consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew or had reason to believe that the consent was given—in consequence of such a misconception,” it said.
The court then said it had “serious doubts” that the promise to marry induced the complainant in the case concerned to consent to sexual intercourse with the man, citing her knowledge of the fact that such a marriage was difficult due to caste differences and “stiff opposition” from their families.
In the current case—Veerendra Yadav vs. State of Madhya Pradesh—the court noted that the prosecutrix or complainant was a married woman and lodged an FIR alleging repeated rape and criminal intimidation under IPC sections 376(2)(n) and 506. However, the court said that a woman who is already married cannot register such a complaint.
It also noted that the lady who lodged the FIR married a man who worked as a driver and had two children with him. Subsequently, she grew to harbour a friendship with a man in her neighbourhood—who promised to divorce his wife for her. The two had physical relations, following which the man refused to enter into wedlock with her, saying that he was not in a position to divorce his wife.
The court relied on the 2023 ruling in Naim Ahamed vs. State (2023), in which the prosecutrix—a married woman and the mother of three children—had an affair with another man and sought to prosecute him for his failure to marry her. In that case, the court noted that the woman was mature and intelligent enough to understand the significance and consequences of the moral/immoral quality of the act she consented to.
In the current case, the woman obtained a divorce from her husband by mutual consent in 2014, leaving her three children with him, the court noted, adding “…if her entire conduct during the course of such relationship with the accused is closely seen, it appears that she had betrayed her husband and three children by having a relationship with the accused, for whom she had developed a liking.”
In 2015, when disputes started taking place between the woman and her neighbour, she filed a complaint against him for raping her under the pretext of a false promise to marry, the court noted. Eventually, the court said it can not be said that the woman gave her consent for a sexual relationship based on the “misconception of fact”.
The court quashed the rape FIR registered against Veerendra Yadav, saying that in such a case, “the FIR is required to be nipped in the bud”, as the same would “entail the long-drawn process of conduct of trial”, but the allegations on their face value do not indicate the commission of any offence.
The court also reiterated the law laid down by the Supreme Court in several decisions, saying “when the prosecutrix is a married lady”, her consent for physical relationship on the garb of the false promise of marriage cannot be brought within the framework of the consent obtained on the basis of “misconception of the fact”.
(Edited by Madhurita Goswami)
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Excellent verdict by the High Court. It’s good to see that a select few in the Indian judiciary still have some common sense left in them. Most judicial orders nowadays seem straight out of the woke playbook.
A married woman claiming rape under the promise of marriage surely is a joke.