New Delhi: Is it rape if a man promises marriage to a woman, gets her consent to have sex with him on that basis, and then refuses to wed her? It’s a tricky question that Indian courts have long grappled with, but have not reached a consensus.
The latest to weigh in on the matter is the Orissa High Court, where a single-judge bench observed in a 23 December order that “the law holding that false promise to marriage amounts to rape appears to be erroneous”.
While allowing the bail petition of a man who’d been accused of raping a woman under the pretext of marriage, Justice S.K. Panigrahi observed that Section 375 of the Indian Penal Code (IPC), which defines the offence of rape, does not mention “consent for the sexual act on the pretext of marriage”.
In this case, the court noted that the facts were “riddled with some visible contradictions” and that since the complainant was an adult woman of sound mind, there “seemed to be no question of anyone being in a position to induce her into a physical relationship under an assurance of marriage”.
However, the Supreme Court as well as several high courts have held divergent views on the issue, depending on the facts and circumstances of the cases brought before them.
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‘Betrayal’ in Bhubaneswar or ‘sexual agency’?
The observations of the Orissa High Court came in the wake of a case in which the complainant had alleged that she had ‘eloped’ to Odisha capital Bhubaneswar in 2020 with a man who had promised to marry her.
In Bhubaneswar, the couple were physically intimate with each other several times, the complainant has claimed, but the man decamped after a few days, effectively “abandoning” her. He is also accused of taking nude photos of her.
The woman was allegedly rescued by her brother and father after she informed them.
The man moved the court for grant of bail after a First Information Report (FIR) was registered in the case upon the complaint of the woman.
But in the court, it was observed that the allegations seemed to be “cloudy without a proper trial”.
Here, the court said, “the rape laws should not be used to regulate intimate relationships, especially in cases where women have agency and are entering a relationship by choice”.
Justice S.K. Panigrahi commented: “Consensual relationship without even any assurance (of marriage) will not attract the offence under Section 376 (punishment for rape) of the Indian Penal Code (IPC).”
Notably, the same judge had made similar observations in April 2021, calling for amendment in the rape legislation defining what constitutes “sexual intercourse” on the “pretext of a false promise of marriage”, saying a certain viewpoint had not been reached and the matter was still under the shroud of confusion.
‘Rape laws deserve serious relook’
The Orissa HC, while allowing the accused man’s bail plea, made several observations on the need to reexamine the automatic extension of provisions of Section 90 of the IPC (consent known to be given under fear or misconception) to Section 375 of the IPC, which deals with rape.
“The automatic extension of provisions of Section 90 of IPC to determine the effect of a consent under Section 375 of I.P.C. deserves a serious relook,” the judge noted.
He also said the rape law does not cover false promise of marriage as one of the “ingredients” which define rape in Section 375.
The judge said that the definition of as codified under Section 375 of the IPC fits under one of seven descriptions — “…first, against her will; second, without her consent; third, with her consent, when consent has been obtained under fear of death or hurt; fourth, where consent has been given by the victim in the wrong belief that the man is her husband; fifth, when the consent is given when she is of unsound mind or intoxicated and unable to understand the nature of consequences of what she is consenting to; sixth, consent from a girl under the age of 18 years; and seventh, when she is not in a position to communicate the consent.”
These seven “ingredients”, he added, “do not cover false-promise-of-marriage-induced sexual intercourse”.
Justice Panigrahi further said that the framers of law have specifically provided the circumstances when “consent” becomes “no consent” in terms of Section 375, but consent for sex on the pretext of marriage is not one of the circumstances mentioned in this section.
Broken vows vs false promises
The Orissa HC judge pointed out that “while the intention of the lawmakers is clear on this issue”, it is “disturbing” that many of the complaints come from socially disadvantaged and poor segments of society. Such women “are often lured into sex by men on false promises of marriage. The rape law often fails to capture their plight”.
The court observed that “cases were on the rise where both persons, out of their own will and choice, develop consensual physical relationship but when the relationship gets sour for some reason, the women use the law as a lethal weapon for vengeance. This misuse defeats the very purpose of the provision of law”.
The HC relied on the SC’s judgment in ‘Anurag Soni vs State of Chhattisgarh’ where it made a distinction between a promise that is unfulfilled, and one that is false from the very beginning.
“The natural corollary that flows from it is that if a man can prove that he intended to marry the woman but changed his mind later, then it’s not rape. It’s only considered rape if it’s established that he had dubious intentions from the beginning of the relationship,” the Orissa judge explained.
The HC further relied on the SC’s ruling in the ‘Pramod Suryabhan Pawar vs State of Maharashtra’ case, where the apex court said that “two propositions must be established” to ascertain whether consent was vitiated by a “misconception of fact” arising out of a promise to marry.
“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. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in sexual act,” the SC had observed.
Diverging views in courts
The Orissa High Court has been unequivocal in saying that false promise of marriage as the ground to level allegations of rape requires a reexamination, but other high courts have held diverging views on the issue.
The SC, while quashing a rape case last year, said there was a distinction between “a false promise of marriage which is given on the understanding that it will be broken”, and “a breach of promise which is made in good faith but subsequently not fulfilled”.
The Kerala High Court also last year quashed a rape case against a 25-year-old man, saying that a man’s promise to marry an already married woman (who was separated from her husband) would not attract provisions of rape under Section 376.
In one peculiar case, the Delhi High Court granted bail to a man accused of raping a woman whom he met on Tinder, on the false promise of marriage, while also considering that the woman’s social media blogs/posts appeared to reflect that she had reservations about the institution of marriage and supported the idea of live-in relationships.
In another case, where the complainant was a disabled woman whom the accused allegedly exploited on the pretext of marriage, the Allahabad High Court denied bail, describing the man’s actions as a “serious offence” against society.
In November last year, the Delhi High Court denied anticipatory bail to a man accused of sexually assaulting a woman on the pretext of marriage and causing her to miscarry, saying “he never showed the intention to marry and kept her under a misconception”.
In one significant order, the Delhi High Court observed that being educated does not make a woman immune to being cheated. In this case, the court denied anticipatory bail to an Indian naval officer accused of raping a woman on the pretext of marriage.
The Madhya Pradesh High Court in August last year also denied bail to a disabled man accused of rape on the pretext of marriage, and also expressed shock at the accused’s reasons for ending the relationship. The man had refused to marry the woman citing caste differences.
Earlier this month, the Allahabad High Court denied bail to a man accused of committing rape on the false promise of marriage and then threatening the woman to convert to Islam.
(Edited by Nida Fatima Siddiqui)
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