Marriage is the start of a family, and it is a commitment that lasts a lifetime. Marriage is a spiritual and emotional relationship as well as a physical one. Hence, it is believed that everything done in the context of a marriage pledge is legal and valid. It is a common pretext that false promise to marriage and consensual sexual intercourse does not amount to rape. When the accused promises to marry the victim when he has no intention of marrying her, and the victim consents to sexual intercourse based on the accused's assurance that he will marry her, the consent is said to be obtained on a misconception of fact under Section 90 of the Indian Penal Code, and the offender is not excused in such a case and such an offender will be guilty of rape under Sec 375 IPC.
The key element of the rape offence is consent. There are three types of rape in law, depending on the nature of the consent or lack thereof and the same is stated in Sec 90 IPC as “A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person”. The third category, i.e. rape by fraud is extended to include rape by a false promise to marry. The meaning of the word "consent" from Section 90 of the IPC was used to insert this new offence into Section 375 of the IPC. Consent is void if it is provided based on a misunderstanding of facts, according to this definition. Indian courts, on the other hand, have begun to take a different approach to Section 375, interpreting the term "consent" in a broader sense. Several court decisions have interpreted "consent" in ways that go against basic statutory interpretation principles. In some situations, courts have ruled that even if a man fails to marry a woman, he cannot be prosecuted under Section 375. Therefore, a strict interpretation is required for a man to be held guilty under Sec 375 IPC.
Uday v. State of Karnataka [2003 SC 1639] was the first in line of judgments held that a false promise to marry cannot come within the ambit of misconception of fact. “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.”
The Delhi high court in the case X vs. State ( Govt of NCT of Delhi) held that sex on the promise of marriage cannot be rape in all siuations. The bench of Justice Vibhu Bakhru has held that Inducement to have a physical relationship by promising marriage and the victim falling prey to such inducement may be understandable in the context of the moment. A promise of marriage cannot be held out as an inducement for engaging in sex over a protracted and indefinite period of time. in certain cases, a promise to marry may induce a party to agree to establish sexual relations, even though such a party does not desire to consent to the same. Such inducement in a given moment may elicit consent, even though the concerned party may want to say no. In such cases, a false promise to marry with the intention to exploit the other party may vitiate consent and thus, constituting an offence of rape under Section 375 of the IPC.
However, a few years later, in the case Deelip Singh v. State of Bihar [2004] the Supreme Court, while acquitting the accused, for the first time unequivocally held that a false promise to marry came within the ambit of the description “secondly” of Section 375 i.e. “without her consent” and this proposition of law has been followed ever since.
The Hon’ble supreme court in Anurag Soni v. State of Chattisgarh [2019 KHC 6441] facts of the case were, the prosecutrix was a student of B. Pharm was familiar with the accused since 2009 and there was a love affair between them. Accused had even proposed to her for marriage and this fact was within the knowledge of their respective family members. The accused took prosecutrix to his house and there they had a physical relationship. Later, the accused refused to marry the prosecutrix. Upon the complaint filed by the prosecutrix a charge sheet was filed. The Trial Court convicted the accused for offence under S.376(1) IPC, sentencing him to rigorous imprisonment for 10 years and to pay a fine of Rs. 50,000/-. In appeal, the High Court confirmed the judgment and order of conviction. Hence the accused has filed this appeal before the Supreme Court. Considering Section 114A of the Indian Evidence Act, which has been inserted subsequently, there is a presumption and the court shall presume that she gave the consent for the physical relationship with the accused relying upon the promise by the accused that he will marry her. The court held that the consent given by the prosecutrix was based on a misconception of fact as per Sec 90 of IPC and such a consent shall not excuse the accused from the charge of rape.
In Harshvardhan Yadav vs State Of U.P [Criminal Appeal No. - 1382 of 2021] the Allahabad High court recently held that sex with a woman on false promise to marry amounts to rape. The bench stated “Rape is considered as the most physically and morally reprehensible crime in a society and has a long life effect on the mind of victims. The victim has to go through a serious emotional trauma and physical suffering. Sexual intercourse with the victim on the pretext of false promise to marry is, and ought to be a an offence of rape under the penal provisions. It is becoming a phenomenon that the accused makes a false promise of marriage with the mala fide intention to deceive the victim. For the major women population in our society, promise of marriage is a great allurement and they are trapped in a situation which results in their sexual abuse and exploitation. These cases are increasing day by day as the accused person believes that they will escape from the criminal liability and punishment by taking advantage of law.”
Rape is the most violent forms of crime against women and the consequences are enduring throughout the victims life. In a patriarchal country like India, women are seen to stay low and voiceless hence, they tend to be exploited on fake promises to marry with a malafide intention to have sexual intercourse with the victims. Rape on a false promise to marry have been interpreted by the courts in various precedents, the legislature ought to enact a well defined stringent law regarding the same.