Bombay High Court Says Consent Acquired By False Promise Of Marriage Amounts To Rape. But This Is A Double-Edged Sword
In India, pre-marital sex is frowned upon and a woman who indulges in it is often subjected to character assassination. Which is probably why, several women refuse to have sex even when they are in a relationship with someone before marriage. Several men take to falsely promising women marriage just to get in her pants and that accounts to violation of consent because her consent was taken by fooling her. This means that even though in that moment she had given her consent, she was actually being raped.
However, the conviction or acquittal of the accused largely depends on proving the intent here. And in a recent case, the Bombay High Court made a milestone ruling in a rape case involving a man who convinced a woman into physical relationship under the pretext of marrying her. The bench consisting of Justices Sunil Shukre and Madhav Jamdar dismissed the man’s plea to acquit him from the case and ruled that consent obtained by a man through fraudulent means will not be considered consent.
The bench said, “If the allegations made by the woman against the man are considered at face value, a prima facie impression is created that she agreed to have sexual relations with him only in the belief that the love expressed by him was genuine. It is true that he did not give any express promise of marriage initially, but it is also true that she had initially resisted his overtures on the ground that before marriage, there could be no physical relationship.” The judges further added, “It was only after such refusal of the woman that the man, to seduce her into agreeing, told her that he loved only her and nobody else. It appears that believing such words she initially surrendered herself.”
Sir,
As per a National Crime Records Bureau, a total of 38,947 rape cases were reported in India in 2016.In 10,068 cases about a quarter of the women claimed it was rape on the false promise of marriage.#झूठे_रेप_केस_में_बढ़ोतरीhttps://t.co/kbAUI8KGyE
— satya jayate (@satyajayate123) January 31, 2020
According to Section 90 of Indian Penal Code, consent given under “fear or misconception” will not be considered consent and if the case falls under Section 375, it will be considered rape. But Supreme Court has also said that not every failed promise of marriage can account to rape. A bench headed by Justice DY Chandrachud made a legal distinction saying, “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 bench further added, “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 the sexual act.” So it’s really case to case and one has to establish that the man had fraudulent intentions before engaging in physical acts.
Sex on false promise of marriage is rape : Supreme Court of Appeal https://t.co/ek4M79P5N7
— KC Nkuna (@Buddy_kooo) September 8, 2019
However, this provision has been being misused by several women. In 2016, there were 10,068 rape cases like that and very few resulted in conviction because intent is really difficult to prove and at the end, it’s in the hands of the Judges.
Justice Pratibha Rani of Delhi High Court had said, “This court had observed on [a] number of occasions that the number of cases where both persons, out of their own will and choice, develop consensual physical relationship, when the relationship breaks up due to some reason, the women use the law as a weapon for vengeance and personal vendetta.” She further added, “They tend to convert such consensual acts as incidents of rape maybe out of anger and frustration, thereby defeating the very purpose of the provision. This requires a clear demarcation between the rape and consensual sex, especially in the case where complaint is that consent had been given on promise of marriage.”
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Mumbai-based senior lawyer and activist Flavia Agnes had pointed out that most of these women come from rural backgrounds. In most cases, these women are lured into a physical relationship by men who promise to marry them. They are dumped once they get pregnant and left with a child to feed. Agnes suggested that in such cases exceptions should be made so that the rapist is not just punished but also made to pay for childcare.
