S
Sahaj Vidhi
law optional 2022 paper II solved

"The consent of victim negates the offence of rape." How far will it be true in case it is obtained by the offender on the false promise of marriage?

Verified Answer

  1. Core Legal Answer & Context: The statement "The consent of victim negates the offence of rape" is fundamentally true, as the absence of free, voluntary, and unequivocal consent is the cornerstone of the offence of rape under Indian law. However, the crucial qualification lies in the nature and validity of that consent. Consent obtained under a 'misconception of fact' or 'fraud' is not considered valid consent. The question of consent obtained on a false promise of marriage falls squarely into this complex area, where courts must discern whether the promise was genuinely intended or merely a fraudulent inducement for sexual intercourse.

  2. Relevant Statutes and Sections:

  • Section 375, Indian Penal Code, 1860 (Rape): Defines rape. It specifies that a man commits rape if he has sexual intercourse with a woman under circumstances falling under any of the seven descriptions, the most relevant here being "against her will" or "without her consent." The explanation to Section 375 clarifies that "consent" means an unequivocal voluntary agreement when the woman, by words, gestures or any form of communication, communicates willingness to participate in the specific sexual act. It also states that mere submission does not amount to consent.
  • Section 90, Indian Penal Code, 1860 (Consent known to be given under fear or misconception): This section is critical. It states that "A consent is not such a consent as is 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."
  1. 1-2 Important Landmark Cases:
  • Uday v. State of Karnataka (2003): This case initially held a conservative view. The Supreme Court ruled that a mere false promise of marriage would not vitiate consent unless it was shown that the consent was obtained by misrepresentation of fact or by putting the woman in fear of injury. It emphasized that the consent must be for the sexual act itself, not for marriage, and that a breach of promise to marry, by itself, is not rape.
  • Deepak Gulati v. State of Haryana (2013): This judgment marked a significant shift. The Supreme Court distinguished between a mere breach of promise and a false promise from the inception. It held that if the promise of marriage was false from the very beginning, made with the sole intention to induce the woman to have sexual intercourse, then the consent is vitiated under Section 90 IPC, and the act would amount to rape. The court stressed that the intention of the accused at the time of making the promise is crucial.
  • Pramod Suryabhan Pawar v. State of Maharashtra (2019): The Supreme Court further clarified the position. It reiterated that for consent to be vitiated under Section 90 IPC due to a false promise of marriage, two factors must be established: (i) the promise of marriage must have been false from the inception, i.e., the accused had no intention to marry the victim when the promise was made; and (ii) the promise must have been the sole reason or direct inducement for the victim to engage in sexual intercourse. If the accused had a genuine intention to marry but later changed his mind, it would be a breach of promise, not rape.
  • Maheshwar Tigga v. State of Jharkhand (2020): This case reaffirmed the principles laid down in Pramod Suryabhan Pawar, emphasizing the need to ascertain the accused's intention at the time of making the promise. If the promise was a ruse to exploit the victim, it constitutes rape.
  1. Clear Conclusion: While genuine consent negates the offence of rape, consent obtained on a false promise of marriage can indeed vitiate it, thereby constituting rape. This is true when the promise of marriage was fraudulent from its inception, meaning the offender had no intention of fulfilling it and used it merely as a deceptive tool to induce the victim into sexual intercourse. In such cases, the victim's consent is considered to be based on a 'misconception of fact' under Section 90 IPC, rendering it invalid for the purpose of Section 375 IPC. Courts meticulously examine the accused's intention at the time the promise was made to distinguish between a genuine breach of promise (not rape) and a fraudulent promise (which amounts to rape).