IS SEX ON THE FALSE PROMISE OF THE MARRIAGE, RAPE?

~ Anushree

In a survey that has been done by The Hindu group, in the year 2014 on the rapes cases, it was
revealed that out of all the rape cases the share of the cases as regards the breach of the promise
to marry amounted to around 25 percent. Thus, the question is whether marriage on the
foundation of the false promise, would amount to the rape? The law on point is under the Section
375 of the Indian Penal Code, 1860. What is eccentric to all such cases is the element of the
consent, and based on such consent, the charge of the rape could be made and not. And the rape
on the pretext of the false promise to marriage could be considered as the rape by fraud, and
reliance for reading it into the S. 375 of the Act could be placed on the definition of the consent
under the Section 90 of the Act: as per which if the consent had been given under the
misconception of the fact, then such consent could not legally be termed as the consent under the
provisions of the Act. It is this definition which has been read into by the courts into the
description secondly under the Section 375 of the Act: without her consent.

But, in my opinion the consent under the pretext of the false marriage could not be termed as the
rape for the reasons hereunder:

1. Section 375 is complete in itself

It is the rule of the interpretation that the statute that the plain interpretation should be given to
the provision which is unambiguous, herein the Section 375, and also that the penal provision
ought to be construed strictly and nothing could be read into it. Judiciary by itself cannot on the
filmsical grounds or ideology could amend or vary the words of the provision and thus thereby
giving rise to the new interpretation. Under the Section 375 there are six descriptions covering all
the aspects of the rape, and the common thread within them is the consent or lack thereof. Apart
the firstly and the secondly description, the rest of the descriptions deal with the cases wherein
the victim had given the consent. And, under these descriptions such consent is vitiated, if the
circumstanced that they state have been met.

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Thus, based on above it could be said vividly that there is distinction amongst the various
provision, and the cases wherein there is no consent are different from the cases wherein there
the consent had been vitiated. The case on the pretext of false marriage might fall under the
thirdly description, but not under secondly: without her consent, as that would tantamount to
violating the scheme of the Act. The role of the Judiciary is not to deem what the Legislature had
said, but to know what the Legislature said it meant. Had it been the legislative intent to include
the cases on the pretext of false marriage as rape, it would be mentioned under any of
description. Thus, it could not be covered under secondly: which says without her consent.

2. The definition of the consent under Section 90 could not be read into the Section 375

The definition of the consent that has been given under the Section 90 of the General Exceptions
could not apply to the Section 375 of the Act because of the fact that the consent and its
incidental things have been dealt under the provision 375 itself. From the thirdly to sixthly are
covered the cases wherein the consent could be vitiated, which inter-alia includes the consent
that has been given under the fear; but that per se could not deem to mean that such provisions
providing for the invalidation of the consent would also include thereunder the consent being
vitiated owing to the misconception of the fact. Further, it could be said that the explanation on
the consent had been given under the amended Section 375, so the question of traversing beyond
the provision does not apply. Since, the rule is that any general provision of the could not
override the specific provision of law that deals with the subject.

3. In arguendo, even if the misconception of the fact under Section 90 is read into the Section
375 that per se would not include the situation of the rape on the false pretext of the marriage.

Even if the definition of the consent provided under the section 90 of the Act is read into the
Section 375 thereof, even then the concept of the misconception of fact could not be left open-
ended, more so when it issue pertains to the interpretation of the provision pertaining to the
heinous crime: Rape. In the foreign jurisdictions, only the deceit that has the effect of coloring
the nature or the purpose for which sexual intercourse had been gone under could be considered
as rape by fraud, and there apparently is nothing like false promise on marriage amounting to

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rape: as in the latter does know the nature or purpose for doing such act. 1 It has been opined by
the Glanville Williams, as hereunder- “in rape, the issue is the woman’s consent to sexual
intercourse with this man. If she does not know that the act is one of sexual intercourse, or if she
is mistaken as to the identity of the man, then she does not consent, but otherwise she does…
There is therefore, no need to inflate the grave offence of rape to make it cover sexual deceits in
general.”2 Thus, in the case of alleged false promise to marry, it would be wrong to deem that
the victim did not know or understand the nature or purpose of the act, and distorted herself with
the false promise. Indubitably, it might have the effect of motivating the victim, but it would be
wrong to say that she did know the nature. If the words misconception of the fact, should be
given the restricted meaning, lest there would be any case falling thereunder.

4. The burden of proof beyond doubt could not be made out in such cases

The cardinal principle of the criminal jurisprudence of fulfilling the burden of proof, by the
prosecution, beyond reasonable doubt, there could not be true applicability of such principle. It is
obvious that such acts happen in the private where the complex and intimate human relations are
involved, the evidence in order to prove charge for the rape are seldom to be found. In the case
of Uday Singh Dhaka, it has been held by the Apex Court that: “21.It therefore appears that the
consensus of judicial opinion is in favour of the view that the consent given by the Prosecutrix to
sexual intercourse with a person with whom she is deeply in love on a promise that he would
marry her on a later date, cannot be said to be given under a misconception of fact. A false
promise is not a fact within the meaning of the Code…”3 The court further opined that: “26. In
view of our findings aforesaid, we do not consider it necessary to consider the question as to
whether in a case of rape the misconception of fact must be confined to the circumstances falling
under Section 375 fourthly and fifthly, or whether consent given under a misconception of fact
contemplated by Section 90 has a wider application so as to include circumstances not
enumerated in Section 375 IPC.”4

1
Section 76(2)(a) of the Sexual Offences Act, 2003 (United Kingdom).
2
Glanville Williams, Textbook of Criminal Law, Second Edition, Universal Law Publishing, at page 559-560
3
Uday Singh Dhaka vs. State of Karnataka, (2003) 4 SCC 46
4
Ibid

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Conclusion

It has been held by the Apex Court in the case of Dileep Singh vs. State of Bihar, where under
the court has read the definition of the consent under Section 90 of the Act, into the Section 375
description secondly: without her consent. The court did not take into consideration the relevant
question that has been left open in the case of Uday Dhaka. It was just held by the court that: “It
finally held that a representation deliberately made by the accused with a view to elicit the
assent of the victim without having the intention or inclination to marry her, will vitiate the
consent given.”5

Albeit as per the Article 141 of the Constitution, 1950 the judgement rendered by the Apex Court
is the law of the land and there is principle of Ignorantia juris non excusat. But, by the above
analysis the author had tried to put forth the opinion. The reliance for such basis has been placed
on the case of Uday Singh (supra) wherein court thought to leave the question open. Thus,
without paying heed to the such decision, the decision rendered in the Dileep Singh (supra) is
per incuriam as regards the locus classicus.

5
Deelip Singh vs. State of Bihar, AIR 2005 SC 203