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the consent was free or not and the surrounding circumstances of the
“consent” have to be examined on a case-to-case basis. The Court, in
the end, holds:
25.… In a case of this nature two conditions must be fulfilled for
the application of Section 90 IPC7 . Firstly, it must be shown that the
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
misconception….8
The Court, however, has not answered the question whether
“misconception of fact” in Section 90 has to be restricted to
circumstances spelt out in Section 375 and whether Section 90, too,
applies to circumstances not enumerated in Section 375.9
Subsequently, in Deelip Singh v. State of Bihar10 , the Court has also
laid down the test whether at the very inception of his making the
promise, the accused held out a false promise to secure the consent.
The Court has noted that the phrase “against the will” seemed “to
connote that the offending act was done despite resistance and
opposition of the woman”.11 The Court has placed reliance on Section
90, and held:
19. The factors set out in the first part of Section 90 are from the
point of view of the victim. The second part of Section 90 enacts the
corresponding provision from the point of view of the accused. It
envisages that the accused too has knowledge or has reason to
believe that the consent was given by the victim in consequence of
fear of injury or misconception of fact. Thus, the second part lays
emphasis on the knowledge or reasonable belief of the person who
obtains the tainted consent. The requirement of both the parts
should be cumulatively satisfied. In other words, the court has to see
whether the person given the consent had given it under fear of
injury or misconception of fact and the court should also be satisfied
… of the fact or should have reason to think that but for the fear or
misconception, the consent would not have been given. This is the
scheme of Section 90 which is couched in negative terminology.12
Neither in Uday13 nor in Deelip Singh14 was the consent obtained
forcibly. Contrast this with Yedla Srinivasa Rao v. State of A.P.15 In that
case, the accused had intercourse with the victim forcibly. Then, after
impregnating, he pacified her by promising marriage. The conviction
was upheld, as the Court held that the intention was not honest from
the beginning; he only promised to marry the prosecutrix when she
became pregnant. The facts of this case are different to the extent that
there was no consent for sexual intercourse; therefore, the
circumstance mentioned as “firstly” - against her will-stood satisfied.
Coercive element established, the Court ought not have even enquired
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her consent; the third, fourth and fifth, when there is consent, but it
is not such a consent as excuses the offender, because it is obtained
by putting her or any person in whom she is interested in fear of
death or hurt. The expression “against her will” means that the act
must have been done in spite of the opposition of the woman. An
inference as to consent can be drawn if only based on evidence or
probabilities of the case. “Consent” is also stated to be an act of
reason coupled with deliberation. It denotes an active will in the
mind of a person to permit the doing of an act complained of.
Section 90 IPC refers to the expression “consent”. Section 90,
though, does not define “consent”, but describes what is not
consent. “Consent”, for the purpose of Section 375, requires
voluntary participation not only after the exercise of intelligence
based on the knowledge of the significance and moral quality of the
act but after having fully exercised the choice between resistance
and assent. Whether there was consent or not, is to be ascertained
only on a careful study of all relevant circumstances. (See State of
H.P. v. Mango Ram20 )
In Karthi v. State21 , as was in Yedla Srinivasa Rao22 , to the first
instance of sexual intercourse, there was no consent. But later, the
accused silenced the prosecutrix with a promise of marriage.
Thereafter, several acts of intercourse took place-with her consent. In
that backdrop, the Supreme Court has upheld the conviction for rape.
Similarly, in State of U.P. v. Naushad23 , the Court placed reliance on
Section 90 and held:
19. In the present case, the accused had sexual intercourse with
the prosecutrix by giving false assurance to the prosecutrix that he
would marry her. After she got pregnant, he refused to do so. From
this, it is evident that he never intended to marry her and procured
her consent only for the reason of having sexual relations with her,
which act of the accused falls squarely under the definition of rape as
he had sexual intercourse with her consent which was consent
obtained under a misconception of fact as defined under Section 90
IPC. Thus, the alleged consent said to have been obtained by the
accused was not voluntary consent and this Court is of the view that
the accused indulged in sexual intercourse with the prosecutrix by
misconstruing to her his true intentions. It is apparent from the
evidence that the accused only wanted to indulge in sexual
intercourse with her and was under no intention of actually marrying
the prosecutrix. He made a false promise to her and he never aimed
to marry her.
More recently, in Pramod Suryabhan Pawar v. State of Maharashtra24 ,
while acquitting the accused, the Supreme Court has summarised the
law:
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18. To summarise the legal position that emerges from the above
cases, the “consent” of a woman with respect to Section 375 must
involve an active and reasoned deliberation towards the proposed
act. To establish whether the “consent” was vitiated by a
“misconception of fact” arising out of a promise to marry, two
proportions must be established. 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
women's decision to engage in the sexual act.
The law regarding “consent” has been followed in Anurag Soni v.
State of Chhattisgarh25 . In that case, the consent for sexual intercourse
was found to be on “a misconception of fact” as understood under
Section 90. From the beginning, as it emerged, the accused had no
intention to marry the prosecutrix. While making his promise, the
accused knew it to be a false one. In Dhruvaram Murlidhar Sonar v.
State of Maharashtra26 , while allowing the appeal, the Supreme Court
has examined the law on the subject and held:
23. Thus, there is a clear distinction between rape and consensual
sex. The court, in such cases, must very carefully examine whether
the complainant had actually wanted to marry the victim or had
mala fide motives and had made a false promise to this effect only to
satisfy his lust, as the latter falls within the ambit of cheating or
deception. There is also a distinction between mere breach of a
promise and not fulfilling a false promise. If the accused has not
made the promise with the sole intention to seduce the prosecutrix
to indulge in sexual acts, such an act would not amount to rape.
There may be a case where the prosecutrix agrees to have sexual
intercourse on account of her love and passion for the accused and
not solely on account of the misconception created by the accused,
or where an accused, on account of circumstances which he could
not have foreseen or which were beyond his control, was unable to
marry her despite having every intention to do. Such cases must be
treated differently. If the complainant (sic) had any mala fide
intention and if he had clandestine motives, it is a clear case of rape.
The acknowledged consensual physical relationship between the
parties would not constitute an offence under Section 376 IPC27 .
Even in Maheshwar Tigga v. State of Jharkhand28 , the Supreme Court
adhered to the law laid down from Uday29 onwards. But in the facts and
circumstances of that case, the Court has held that “the consent of the
prosecutrix was but a conscious and deliberated choice, as distinct from
an involuntary action or denial and which opportunity was available to
her….”30 As a result, the accused was acquitted. More recently, in Sonu
v. State of U.P.31 , the Supreme Court quashed an FIR, on the ground
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that:
11. (t)here is no allegation to the effect that the promise to marry
was given to the second respondent was false at the inception. On
the contrary, it would appear from the contents of the FIR that there
was a subsequent refusal on the part of the appellant to marry the
second respondent which gave rise to the registration of the FIR.32
Thus, for almost two decades, the law has consistently been that a
consent given for sexual intercourse on a false promise to marry would
be a consent given on the “misconception of fact” and hence, does not
amount to valid consent under Section 90. In other words, it amounts
to rape. The Court, in all the above quoted judgments, has not
considered Explanation 2 to Section 375, which reads as under:
Explanation 2.—Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any form of
verbal or non-verbal communication, communicates willingness to
participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of
penetration shall not by the reason only of that fact, be regarded as
consenting to the sexual activity.33
Put plainly, “consent” must unequivocally be for the sexual act, and
the basis for the consent is not relevant for the purpose of the section.
Further, the word “fact” in Section 90, of which there must be a
“misconception”, ought to be of the sexual act, and not some other
circumstance or fact. That is, for the offence not to be attracted, the
sexual act must be consented to. Indeed, the Court has recognised in
Kaini Rajan34 that “consent” was “an act of reason coupled with
deliberation” and that it denotes “an active will in the mind of a person
to permit the doing of an act complained of”.35
In our respectful view, if there is free and unequivocal consent for
the sexual act - in the absence of any specific legislative mandate - the
basis for such free and unequivocal consent, such as a promise to
marry, is irrelevant. The intent of the legislature is clear from the
second explanation. With utmost respect, when the provision
categorically enumerates situations in which consent obtained under
either threat or coercion as being no consent, and the section having
categorically left out conditional consent, it cannot be said that consent
obtained on a promise to marry is not free consent. What is germane to
Section 375 is whether there is consent by free will for sexual
intercourse, and such consent is not obtained from a girl of less than 18
years of age or such consent is not obtained by threat, coercion or
intoxication. When none of these factors are directly attracted, and a
consent is given on “promise to marry”, it can hardly be said that such
consent is not consent by free will.
For example, in R. v. Flattery36 , a nineteen-year-old girl consulted
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the accused, a doctor, for treatment for an illness. And the accused, on
the pretext of giving her surgical treatment, had carnal intercourse. The
victim having submitted herself on the genuine belief that she was
being treated, the accused was held guilty of rape. Similarly, in R. v.
Williams37 , when the accused, who was engaged by the victim to give
her lessons in singing, had sexual intercourse with the victim on the
pretext that he had to perform an operation on her to produce her voice
properly. Thus, the victim having submitted herself on this premise but
without any intention of having sexual intercourse, the King's Bench
upheld the conviction of rape. In Williams38 , the King's Bench Court
placed reliance on the opinion of Branson, J. in Reg. v. Dicken39 thus:
…Branson, J. stated the law in the course of the summing up in
the present case in accurate terms. He said:“The law has laid it down
that where a girl's consent is procured by the means which the girl
says this prisoner adopted, that is to say, where she is persuaded
that what is being done to her is not the ordinary act of sexual
intercourse but is some medical or surgical operation in order to give
her relief from some disability from which she is suffering, then that
is rape although the actual thing that was done was done with her
consent, because she never consented to the act of sexual
intercourse. She was persuaded to consent to what he did because
she thought it was a surgical operation.40
In other words, only when the consent is given for an act, which the
consent giver is not knowing to be a sexual act, can the offence of rape
be attracted. Such a consent would fall within the ambit of
“misconception of fact” even under Section 90 IPC. It is settled law that
a criminal statute must be interpreted in a strict manner, and, it is
submitted, the law laid down by the Supreme Court regarding “the
consent for sexual intercourse on a false promise to marry” as
attracting the offence of rape would amount to reading words into the
statute - words that do not exist.
Recently, two High Courts, while taking a completely contrary stand
on the issue, have expressed a need for the legislature to clarify the
issue. The Allahabad High Court, in Harshvardhan Yadav v. State of
U.P.41 , has noted that till the legislature provides for “a clear and
specific legal framework where the accused obtained consent for sexual
intercourse on the false promise of marriage”, the Court should
continue to give protection “to such women who have suffered on
account of false promise of marriage”.42 Conversely, the Orissa High
Court in G. Achyut Kumar v. State of Odisha43 , while hearing an
application for bail, has opined that “the automatic extension of
provision of Section 90 IPC to determine the effect of a consent under
Section 375 deserves a serious relook. The law holding that false
promise to marriage amounts to rape appears to be erroneous”.44
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**
Advocate on Record, Supreme Court of India. Author can be reached at
amitpaioffice@gmail.com.
1
Penal Code, 1860.
2 This would not apply to “consent” by a girl less than 18 years of age.
3
Penal Code, 1860, Ss. 375-377.
1
(2003) 4 SCC 46.
6
(2003) 4 SCC 46, 56-57.
8
Uday v. State of Karnataka, (2003) 4 SCC 46, 58.
9
Uday v. State of Karnataka, (2003) 4 SCC 46, 59, para 26.
11 Deelip Singh v. State of Bihar, (2005) 1 SCC 88, 97, para 12.
12
Deelip Singh v. State of Bihar, (2005) 1 SCC 88, 99.
15
(2006) 11 SCC 615.
25 (2019) 13 SCC 1.
26
(2019) 18 SCC 191, 202.
30
Maheshwar Tigga v. State of Jharkhand, (2020) 10 SCC 108, 117, para 20.
36
[L.R.] 2 Q.B.D. 410.
41
2021 SCC OnLine All 500.
42 Harshvardhan Yadav v. State of U.P., 2021 SCC OnLine All 500, para 30.
43
2020 SCC OnLine Ori 417.
44 G. Achyut Kumar v. State of Odisha, 2020 SCC OnLine Ori 417, para 15.
46
(2003) 4 SCC 46.
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