This post has been written by Anjali Krishnan, a student of JEMTECH school of Law, IP University.
“Rape is the most morally and physically reprehensible crime in a society, an assault on the body, mind, and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life,” ~ Justice M.R. Shah.
In 2014, the Hindu Newspaper did a series on rape cases in India in which detailed research, surveys, and interviews with lawyers and judges were conducted. At the end of the surveys, a shocking fact was discovered that “over 40% dealt with consensual sex, usually involving the elopement of a young couple and the girl’s parents subsequently charging the boy with rape. Another 25% dealt with breach of promise to marry”.
India is a conservative society where having sexual intercourse before marriage is still considered to be taboo. If the society gets to know that the woman had sexual intercourse before her marriage they would look down upon her and the chances of her getting good marriage proposals would be less. Marriage in Indian society is considered to be one of the most pious relations which prevails in our society. Marriage is a legally recognized union between two individuals as partners. Sometimes there are situations where a man promises a woman that he would marry her soon and asks for her consent for having sexual intercourse with her. But once having intercourse with her he would break his promise of marriage and leave her. In these kinds of situations, that man would be liable for rape.
According to government crime records 2016, these kinds of crimes have been in raise. It stated that a survey conducted by the police 10,068 similar cases of rape by “known persons on the promise to marry the victim”. Whenever the accused makes a promise to marry the victim with no intention to fulfill his promise then he would be liable for rape. He would be charged under section 90 and section 375 of the IPC.
Section 375 of the IPC talks about rape. It states that a man is said to commit rape if he penetrates his penis into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person; or inserts any object or part of the body other than the penis to the above-mentioned body parts of the woman or makes her do so with him or any other person; or manipulates any part of the body of a woman to cause penetration into the early talked about body parts of a woman’s body or makes her do with him or some other person; or applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or some other person. And these circumstances should fall under any of the following descriptions, which are: against her will, without her consent, with her consent but putting her in fear of death or hurt of her life or life of anyone on whom she has an interest, with her consent but the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married, with her consent but that consent is obtained when she was of unsound mind or intoxicated to understand the nature and consequences of that to which she gives consent, with or without her consent when she is under 18 years of age or when she is unable to communicate consent.
Whereas section 90 of the IPC talks about consent known to be given under fear or misconception. This section says that it would not amount to consent if it is obtained by putting a person under fear or under a misconception of facts. So, if a man obtains the consent of any woman by putting her in fear or putting her under a misconception of fact in this case, the false promise to marry her, then it would not amount to consent.
The Supreme Court has advised the trial court to take special care while handling these types of cases. They have asked the lower courts to carefully look at the initial intention of the man, whether the intention to fulfill his promise to the woman is true or is it a false promise just to fulfill his lust. So, if a man is accused of this crime, it must be his responsibility to prove in front of the court that his intention from the start was pure and not based on lust
However in 2019, in the verdict of Pramod Suryabhan Pawar v. State of Maharashtra & Anr. delivered by Justice DY Chandrachud and Indira Banerjee it was held that a woman cant accuse a man of rape if she continues to have sex with him even after knowing that in future they won’t be getting married. In the said case, the accused was a CRPF officer and he knew the complainant from very long time. He promised the complainant that he would marry her in 2008 and had sexual intercourse with her numerous times. In 2016, he told the complainant that he can’t marry her cause of the difference in their caste, following which the complainant filed a complaint against him. The lower courts had held him guilty, resulting which he filed an SLP to the Supreme Court where he got an acquittal.
In this judgement Justice DY Chandrachud pointed out an important difference between breech of promise and false promise. In case there is breech of promise, the person who had made the promise initially had the intention to fulfill his promise but due to some circumstances he could not keep his promise. Whereas in case of false promise, the person who made the promise from the start didn’t have any intention to fulfill his promise. There should be an immediate reaction or a direct nexus between the false promise of the accused and the consent given by the woman to a sexual act.
This is really important task to be done very carefully to check whether the intention of the accused man was dubious or not. As intention of a person is really difficult to establish it is really crucial to identify it as there are chances of using this rape laws in wrong way. In 2017, Justice Prathiba Rani said that women use rape law for “vendetta” when a relationship goes sour. Just as a coin has two sides to it, every law can be used in two ways, one for procuring justice while other to simply abuse it. So its the duty of the judiciary and the law officers to look after these laws, to improve it for all the victims and stop it from being misused to get revenges.
References:
https://www.bbc.com/news/world-asia-india-47959684
https://www.latestlaws.com/latest-news/sex-on-promise-of-marriage-cannot-always-be-treated-as-rape/
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