‘Consent’ on the promise of marriage, rape?
Introduction:
The Supreme Court in the case of Pramod Suryabhan Pawar v State of Maharashtra[1] has laid down clearly as to when the consent will be ‘vitiated’ in rape cases in ‘misconception of fact’ because of promise of marriage. The bench comprised of Justice DY Chandrachud and Indira Banerjee. The court has clarified that when the woman is uncertain that there would be marriage between the two or not and engages in sexual intercourse then it would not amount to rape.
Facts:
The complaint was filed by an Assistant Commissioner of Sales Tax, against a deputy commandant of CRPF. He used to visit her multiple times during 2010 and 2011 at her places of posting where he would stay for a few days and engage in sexual activity. At that time, she used to ask him about marriage and he used to say that he would marry her after his elder sister’s marriage. After his sister’s marriage in 2012, the appellant visited the complainant and forced her to have sexual intercourse with him. Complainant asked him about their marriage and that is when he raised his concerns about them being from different castes. This continued till March 2015. In August, he sent her messages on WhatsApp that were insulting for her and attacked her for her caste. She threatened him that she would file a police complaint against him. He again promised her that he would marry her after his brother’s marriage. On 9 March 2016, he engaged in sexual intercourse with her against her will. She also came to know that he was engaged to some other woman. He again assured the complainant that he would marry her. After some time, she came to know that he had married the other woman. On 17 May 2016, she filed the FIR.
Supreme Court’s findings:
The Court relied on its previous judgments to reach the final verdict. They noted that the Court has repeatedly held that consent under Section 375 of IPC involves an active understanding of the circumstances, actions and consequences of the act. A person consents to the action when he evaluates various alternatives and possible consequences. The court distinguished between ‘a false promise given on the understanding by the maker that it will be broken’ and ‘the breach of the promise which is made in good faith but subsequently not fulfilled’. They further held that promise to marry just to deceive her and engage in sexual activity amounts to ‘misconception of fact’ which vitiates the woman’s consent. A breach of promise cannot be a false promise and to prove the breach, it should be proved that the maker had no intention of fulfilling it. The false promise should have a direct relationship with the woman’s decision of engaging in sexual act.
The Court further noted that there are no allegations in the FIR which state that the promise to marry was made in bad faith or with the intention to deceive her. The failure to marry does not mean that there was any intention to deceive. The complainant knew since 2008 that there were obstacles to marrying the appellant and even after that, they continued to engage in sexual activities long after their getting married had become disputed. With reference to the offensive WhatsApp messages, the court noted that the relevant provisions for this offence came into force in January 2016 and those messages were sent in 2015. Further, these messages were not in public view and thus no assault occurred.
Conclusion:
In an April 2019 judgment, the Supreme Court had laid down that if a man does not fulfil his promise of marriage, then the sex between the consenting adults would be considered rape.[2] With this judgment, the court has clarified that every failed promise cannot lead to rape and that the intention of the accused while making the promise plays a major role. The law has been misused by women a lot of times when the relationships do not end well. The judgment has tried to demarcate the difference between ‘rape’ and ‘consensual sex’. It is through such judgments that the Supreme Court brings a ray of hope for the people who are falsely accused by women.
Amrashaa Singh
Reporters’ committee
Indian National
Bar Association
[1] Pramod Suryabhan Pawar v State of Maharashtra, Criminal Appeal No. 1165 of 2019 (Arising out of SLP No. 2712/ 2019)
[2] Anurag Soni v State of Chattisgarh, Criminal Appeal No. 629 of 2019 (Arising out of SLP No. 618/ 2019).