By AdminJuly 11, 2020

Physical Relationship Followed By Breach Of Promise Of Marriage – A Rape Or Civil Wrong?

Tags: criminal lawyers in kolkata,lawyers in kolkata

"if you are close when you should be distant, you will be distant when you should be close"- An old Parsi saying.  

1. Introduction-

The law promulgated and amended from time to time is constant from the inception of civilised society all with an objective to bring certainty in social fabric life and to safeguard a class or society or even an individual from exploitation, harm or deceit. Since the mind-set of society is never constant in the changing world the jurisprudence followed by the courts of law hence loathes to lack behind for long. And that is why many a things which was prohibitory in past is legal in presenti even if the public at large could not come out of its previous shell. Marriage often treated to be a an act with religious devotion and a pious act in Indian society is such a quad mire when the couples even after long courtship falls apart and then comes out the dangerous fangs of apprehension and incarceration on the pretext of breach of law. The present discourse is an attempt to fish out the issues troubling the public and the law carer to come to a conclusion whether a person commits rape only because his previous promise of marriage goes  to a quandary and culminates into failure.  

1. SUBJECT MATTER -

Rape is the fourth most common crime against women in India.^[1][2] According to the National Crime Records Bureau (NCRB) 2013 annual report, 24,923 rape cases were reported across India in 2012.^[3] Out of these, 24,470 were committed by someone known to the victim (98% of the cases)1. Before delving deep into the issue t is very important to understand what does constitute rape in general and in breach of promise in particular under Indian jurisprudence. It is , in that context, expedient as well profitable to reproduce the definition of law as provided in Indian jurisprudence( Indian Penal Code ) along with tis allied provisions. S 375. Rape.—A man is said to commit “rape” if he— (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:— First.—Against her will. Secondly.—Without her consent. Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.—With her consent, when 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. Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.—With or without her consent, when she is under eighteen years of age. Seventhly.—When she is unable to communicate consent. Explanation 1.—For the purposes of this section, “vagina” shall also include labia majora. 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. Exception 1.—A medical procedure or intervention shall not constitute rape. Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. S.90. Consent known to be given under fear or misconception.—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 of misconception; or        Consent of insane person. - if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or        Consent of child. - unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age. Cheating -Section 415 of the IPC “Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.  

1. Development of Judicial Precedents – In one direction-
2. The Karnataka High Court in KUMARESH CHIKKAPPA BAGODI - Appellant Versus STATE OF KARNATAKA, KOLGHATIGI POLICE – Respondent 2 came to hold that on 07.03.2001 that “ she has submitted her self to the accused for sexual intercourse on number of occasions alleged to be on the belief or hope that he will marry her. In such circumstances, the question would be whether the fact that accused induced the girl to submit herself to sexual intercourse only on the assurance of the marriage and if he does not marry her and commits breach of such promise, can it be said that he has committed an offence of rape or not? At this stage itself, it is to be noted that the complaint of rape has been filed almost one year later of the incident of submission of herself to the sexual intercourse to the accused, that too after few months of her alleged secret delivery of a child. Since the age of the victim is established by the prosecution itself through the evidence of various doctors including the Radiologist p. W. 2 that she was between 16 to 18 years on the date and no doubt this determination of age factor is subject to marginal benefit of plus or minus of two years. In my view this marginal benefit must go in favour of the accused in the absence of sufficient positive material evidence to show that the girl was below 16 years and as such it has to be held that the girl was of above 16 years and she had consented to have sexual intercourse with the accused not once but on many occasions practically for a period of one year.

( 10 ) SINCE her consent was not on the grounds as enumerated under clauses thirdly, fourthly and fifthly, what is to be seen is whether the failure to keep the promise of marrying and the admitted fact that on the basis of the promise the victim surrendered herself to the sexual intercourse with the accused is sufficient to bring the case within the purview of commission of offence of rape under section 376 IPC. “   The court went to add highlighting the misuse of the law that “ ( 11 ) SINCE the offence under Section 376 IPC is a he inous crimeand punishment is also very severe, strict construction as to the application of the provision in regard to commission of offence is to be construed. Time and again, the Courts have laid down that merely because the offence is alleged as heinous, straight away it need not be ended in conclusion that the accused was responsible for the offence. As noted earlier in the very first information submitted by the victim, it is stated thus: As noted the entire illicit affair between the complainant and the accused has taken place almost for a period of one year or so. She has specifically admitted that she succumbed to his demands of physical pleasure only on the ground of his promise to marry. This shows that she was voluntarily and with consent, having sexual pleasures with the accused, almost for a period of 6 months without any interruption or complaint to anybody. What is surprising is even thereafter when she became pregnant due to this affair, she did not complaint to anybody much less to her father and in fact, as he admits she tried to hide the pregnancy by wearing loose clothes. Even thereafter, after becoming pregnant she has not complained to anybody about the incident. The act of keeping quiet for such a long period even when the pregnancy was apparent will clearly indicate that the complainant-victim did not take the matter seriously and possibly because she had volunteered and consented for the affair. After the gestation period was over, even then she says that she did not inform anybody and in fact admits that she attended herself to giving birth of the child and thereafter went to the extent of saying and admitting that she left the child on the pial of the house of one Shidramappa Saunshi and did nothing thereafter. This conduct as is apparent from the first information as well as evidence before the Court, clearly indicate that all along she was a consenting party and may be her consent was possibly with a fond hope that the accused would marry her. As noted, under Section 375 IPC, even a consent is not a defence, only when the consent obtained is out of fear of death or when she was made to believe that the accused is already married to her or while her mental condition was of unsound nature or affected by intoxication, etc. , and she was unable to understand the nature of consequences of giving such consent. Taking into consideration these aspects, I am of the view that consent in the present nature i. e. , based on promise of marriage does not bring the act of sexual intercourse of the accused with the victim under the definition of rape as defined under Section 375 ipc. None of the witnesses including the neighbour or the father have suspected as to the physical changes observed in the victim due to the alleged pregnancy. This is possible only in case of clever handling of situation by the complainant herself as is admitted in her evidence. Again if we refer to Section 90 of the IPC, similar provisions akin to clauses thirdly, fourthly, fifthly are found. It has been interpreted that if the case falls under any of the clauses, it is not consent at all. Conversely if the consent does not fall under any of the categories, either under Section 90 or clauses thirdly, fourthly and fifthly of Sections 395, I am of the view that if the victim is grown up, adult person and her consent is not because of any reasons as stated in the provision but only based on alleged promise, it cannot be held that the accused committed the offence of rape. What is striking is if really she had been misled by the assurance of marriage by the accused who has visited her house on many occasions and which promise is not fulfilled, why should she keep it a secret from her father. Assuming that initially she had believed the accused, when he held out the promise and she consented for the sexual intercourse, there is no material to show that the accused had no intention of keeping the promise. It may be that subsequently when the girl conceived, the accused might have felt otherwise. Even then, it cannot be said that mere breach of promise to marry, the accused is guilty of offence of rape for which complainant herself is a consenting party. The failure to keep promise at a future uncertain date due to the reasons not very clear on the evidence, does not mean to mis-conception of fact on the inception of the act itself as required under Section 90 of IPC. Hence, in my view if a full grown girl, major or adult consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity till she becomes pregnant and in the present case even after the delivery of a child, it is only an act of promiscuity on her part and this voluntary consenting act of the victim cannot fasten any liability of commission of rape on the accused. “

19. The supreme court soon thereafter on 19.2.2003 in Uday — Appellant versus State of Karnataka —Respondent 3 gave due regard to the changes made in the society and held after discussion of the case that 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. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.

The Supreme Court after weighing respective evidence sought to give a guideline to deal with such kind of cases in the terms of Keeping in view the approach that the Court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown up girl studying in a college. She was deeply in love with the -appellant. She was however aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to it. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily, and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact. (Para 23)        Held finally : In the result, this appeal must succeed, and is accordingly allowed. The impugned judgment and order convicting and sentencing the appellant for the offence punishable under Section 376 IPC is set aside, and the appellant stands acquitted of the charge. Since the appellant was granted exemption from surrendering when the special leave was granted, no further order for his release is necessary. Considering the point of view of the courts on the issue and the pulse of the nation it is necessary that  it is responsibility, moral & ethical both, on the part of man not to exploit any woman by extending false promise or through devious acts to force or induce the girl for sexual relationship. But, ultimately, it is woman herself who-is the protector of her own body. Promise to marry mayor may not culminate into marriage. It is the prime responsibility of the woman in the relationship or even otherwise to protect her honour, dignity and modesty. A woman should not throw herself to a man and indulge in promiscuity, becoming source of hilarity. It is for her to maintain her purity, chastity and virtues.

12. The BOMBAY HIGH COURT in Mahesh Balkrishna Dandane—Applicant versus State of Maharashtra —Respondent Ms. Sonali Alfred Jadhav — Intervener 4 on 12.03.2014 while deciding the merit of the anticipatory bail applied by the accused person held that

“  8. However, every breach of promise to marry cannot be said to be either a cheating or rape. A couple in love with each other may be having sexual relationship and realize that they are not compatible and sometimes love between the parties is lost and their relationship dries gradually, then earlier physical contacts cannot be said as rape. A marriage cannot be imposed, as a search of life partner depends not only on physical compatibility but also on emotional, psychological bonding. It is a matter of choice related to individual’s notions of suitability, emotional, psychological comfort and biological requirement. Thus while granting anticipatory bail, all these factors are required to be considered.

9. In the present case, both the applicant/accused and complainant are graduated in law. A fact of their sexual relationship is admitted. Their relations were going on for a long period i.e. from 2009 till 2013. However, there was a letter written by the applicant/accused in the year 2011 wherein he has mentioned that the complainant is forcing him to marry as she tried to commit suicide. Thereafter also their physical relationship continued. The photocopy of SMS sent on 1st July, 2013 prima facie discloses that complainant had an idea that applicant/accused has decided to marry other girl. Moreover, to keep physical relationship or not is a choice of both the parties. Prima facie it does not appear from the record that the complainant was either forced to keep sexual relationship or she was really induced to such an extent that she has no other option but to keep physical relationship with the applicant/accused. Even though if at all there is bonafide promise to marry and the girl chooses to keep physical relationship with that persons and if a boy withdraws his promise, as they are not psychologically comfortable with each other, then it cannot bring that particular act within the purport of offence under section 375 of IPC. The complainant is an educated girl and it shows that it was her conscious decision to keep sexual relations with him. Prima facie at this stage, possibility of noncommittal, consensual relationship cannot be denied. “

• It is therefore clear that Rape is the most morally and physical reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim where a victim under a misconception of fact to the extent that the accused is likely to marry her, submitted to the lust of the accused, such a fraudulent act in the settled view cannot be said to be consensual so far as the offence of the accused is concerned. Consent may be expressed or implied coerced or misguided or obtained willfully or through deceit. There is a clear distinction between rape and consensual sex and the court must very carefully examine whether the accused had intention to marry with the victim or had malafide motives, and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. 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 misrepresentation made to her by the accused.

In that context the THE HIGH COURT OF JHARKHAND AT RANCHI in  Manoj Kumar Sharma – Petitioners Versus The State of Jharkhand - Opp. Part on 08.12.2015 concluded that “ Thus, from the ratio decided in the above case, it is amply clear that the court must in each case consider the evidence before it and the surrounding circumstances, before reaching a conclusion because each case has its own peculiar facts. So, at this initial stage, the court is not to examine the evidence meticulously or a roving enquiry is possible and the issue can be decided only after taking proper evidence. I have also gone through the materials available on the record and I find that the petitioner had brought the victim to his house and established physical relationship on a false promise of marriage. The consent which the petitioner had obtained appears to be not a voluntary one rather it was given by her under misconception of fact that the petitioner would marry her but this is not a consent in law. There is strong prima facie case and grave suspicion against this petitioner. This is not a stage to make a roving enquiry into the matter or to see whether the trial will end in conviction or acquittal rather the court has to presume a strong suspicion or a grave prima facie case to proceed with the case. Even if the accused is successful in showing the suspicion or doubt in the allegation levelled by the prosecution, at this stage, it would be impermissible to discharge the accused before trial.“

1. While applying the concept of cheating in the case of rape if held to have been committed on breach of promise of marriage the Honourable Supreme Court in G.V. Rao v. L.H.V. Prasad (2000) page 693 has held as under:- “As mentioned above, Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney vs. State of Bombay, AIR 1956 SC 575 = 1956 Crl.L.J. 1611 = 1956 SCR 483, a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, "mens rea" on the part of that person, must be established. It was also observed in Mahadeo Prasad vs. State of West Bengal, AIR 1954 SC 724 = 1954 Cr.L.J. 1806, that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered. Thus, so far as second part of Section 415 is concerned, "property", at no stage, is involved. Here it is the doing of an act or omission to do an act by the complainant, as a result of intentional inducement by the accused, which is material. Such inducement should result in the doing of an act or omission to do an act as a result of which the person concerned should have suffered or was likely to suffer damage or harm in body, mind, reputation or property” .

In Hridaya Ranjan Prasad Verma vs. State of Bihar (2000) 4 SCC 168 the Apex Court has further held that:- “in determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise”.

20. Taking the cue of the perception held by the Supreme Court, THE HIGH COURT OF JUDICATURE AT BOMBAY in Bharat Devdan Salvi & Ors. - Petitioners Vs. The State of Maharashtra & Anr. – Respondents 4 on 20.01.2016 has held that – “ It may be mentioned that to constitute an offence of 'rape' as defined under section 375 of the Indian Penal Code, the act must be covered by any of the six clauses of section 375 of the Indian Penal Code. In order to constitute rape under the first and second clause of Section 375, which are relevant for the purpose of this case, sexual intercourse has to be against the will and without the consent of the woman. In State of U.P. vs. Chhotey Lal (2011) 2 SCC 550 the Apex Court has held that:-        “The expressions `against her will' and `without her consent' may overlap sometimes but surely the two expressions in clause First and clause Secondly have different connotation and dimension. The expression `against her will' would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition. On the other hand, the expression `without her consent' would comprehend an act of reason accompanied by deliberation.

In State of H.P. v. In State of H.P. v. Mango Ram 3 , a 3 Judge Bench of this Court while dealing with the aspect of `consent' for the purposes of Section 375 IPC held at page 230 of the Report as under:-        "Submission of the body under the fear of terror cannot be construed as a consented sexual act. 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 assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances." and, the expression `without her consent' would comprehend an act of reason accompanied by deliberation.”

• The HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH in Baljeet Kumar Rao - Petitioner Versus State of Haryana and another – Respondents On 23.2.2018 5 had come to the view that “ The complainant is already married and has two children. The relationship started during the subsistence of the marriage. Even the accused is married. None of the parties had approached the Court for divorce. Their marriage has not been dissolved. The allegations of the complainant that her objectionable photographs were taken could not be substantiated as during investigation, no such photographs were recovered. Keeping in view the fact that both the complainant and the petitioner were married and their marriage was still subsisting, therefore, the complainant could not have been induced into any physical relationship based on assurance of marriage. Their relationship if, was consensual, the allegation that she was induced with the promise of marriage stands falsified. The acknowledged consensual physical relationship does not constitute the offence under Section 376 IPC because both the parties were married “.

The basis of this conclusion of reliance of similar views taken by other high courts. In Harish Kumar versus State, Crl. M.C. 3877/2009 also substantially similar facts were involved and the FIR u/s 376/593 IPC was registered which was quashed by observing that the relationship between the two was consensual.In Deelip Singh @ Dilip Kumar versus State of Bihar, (2005) 1 SCC 88, it was held that consent given by a woman believing the man's promise to marry her would fall within the expression "without her consent" only if it is established that from the very inception, the man never really intended to marry her and the promise was a mere hoax. Since it is a case of obvious consent of the prosecutrix, who was aware that no marriage had taken place, no case u/s 376 IPC is made out. In Alok Kumar versus State, 2010(4) JCC 2385 also the plea of inducement to have physical relation on the assurance of marriage was taken and the FIR was quashed and it was observed as under:-        "6. From the allegations made by the complainant, it is apparent that when the complainant started 'live-in-relationship' with the petitioner, the petitioner had not even divorced his previous wife though it seems was living separate from her. The complainant was having a child while the petitioner was also having a child. 'Live-in-relationship is a walk-in and walk-out relationship. There are no strings attached to this relationship, neither this relationship creates any legal bond between the parties. It is a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without consent of the other party and one party can walk out at will at any time. Those, who do not want to enter into this kind of relationship of walkin and walk-out, they enter into a relationship of marriage, where the bond between the parties has legal implications and obligations and cannot be broken by either party at will. Thus, people who chose to have 'live-in-relationship' cannot complain of infidelity or immorality as live-in-relationships are also known to have been between married man and unmarried woman or between a married woman and an unmarried man."

• THE HIGH COURT OF JHARKHAND AT RANCHI IN Sarfaraj Ansari – Petitioner Versus The State of Jharkhand – Respondent Criminal Revision No. 993 of 2013 6 as recently as on 13.09.2019 has held that “ Section 375 defines the offence of rape and enumerates six descriptions of the offence. The first clause operates where the women is in possession of her senses and capable of consenting but the act is done against her will and the second, where it is done without her consent; the third, fourth and fifth, when there is consent but it is not 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 of 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 mind of a person to permit the doing of the act complained of. 10. In the instant case admittedly the petitioner was a juvenile and aged about 16 years and the victim girl was adult and aged about 20 years. This clearly goes to show that the victim girl was much more mature than the petitioner. Further it has been categorically admitted by the PW-2, who is the mother of the victim girl, that her daughter wanted to marry the petitioner and that all the family members were knowing the petitioner very well. It has also come in the evidence of the victim girl that there were only three rooms and the victim girl was residing along with her father and mother and three brothers and one sister so it cannot be inferred that the petitioner was having cohabitation without the knowledge of other family members. 11. In my considered opinion a consent was given by the victim girl to sexual intercourse with the petitioner with whom she was deeply in love on a promise that he would marry her on a later date cannot be said to be given under the misconception of fact. It has been held by the Hon’ble Apex Court in the case of Uday vs. State of Karnataka, (2003) 4 SCC 46 that a false promise is not a fact within the meaning of the Code. Recently, the Hon’ble Apex Court in the case of Dhruvaram Murlidhar Sonar vs. State of Maharashtra, (2018) SCC Online SC 3100 has discussed the issue at hand in details.”

1. Judicial Precedents on either side of the coin-

It is however no denying the fact that the rape is the most morally and physically reprehensible crime in society, as it is 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 defies the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means, can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamount to a serious blow to the supreme honour of a woman and offends both her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks. This view ahs bee reiterated by the Supreme Court inYedla Srinivasa Rao vs. State of Andhra Pradesh, (2006) 11 SCC 615  as well as in Pradeep Kumar Verma vs. State of Biha. Hence, it would be premature to scuttle the complaint on technical grounds.

16. The High Court OF KARNATAKA AT BENGALURU in D.S. Karthik, Son of D.V. Sadananda Gowda – Petitioner Versus State by R.T. Nagar Police Station, Bengaluru and Ors. – Respondents 7 on 16.122016 has held that “ It is well settled law that normally in the case of a love affair, where a man promises to marry a woman and even has a physical relationship with her and if subsequently the marriage does not come through, it cannot be said that an offence either under Section 376 or under Section 417 of IPC is made out. In such a case, the liability could only be under civil law for damages as held by the Supreme Court in the case of Deelip Singh vs. State of Bihar in Criminal Appeal No.44 of 2004 decided on 3.11.2004.”
17. The one of the most important decision on holding false pretext of marriage amounts to rape was passed by the Supreme Court in Yedla Srinivasa Rao—Appellant versus State of A.P.—Respondent 8 on 29.09.2006 which held that - “ The question in the present case in whether this conduct of the accused apparently falls under any of the six descriptions of Section 375 of IPC as mentioned above. It is clear that the prosecutrix had sexual intercourse with the accused on the representation made by the accused that he would marry her. This was a false promise held out by the accused. Had this promise not been given perhaps, she would not have permitted the accused to have sexual intercourse. Therefore, whether this amounts to a consent or the accused obtained a consent by playing fraud on her. Section 90 of the Indian Penal Code says that if the consent has been given under fear or injury or a misconception of fact, such consent obtained, cannot be construed to be valid consent. “

“ 10. It appears that the intention of the accused as per the testimony of PW1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before Panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent. In this connection, reference may be made to be decision of the Calcutta High Court in the case of Jayanti Rani Panda Vs. State of West Bengal & Anr. [1984 Cri.L.J. 1535]. In that case it was observed that in order to come within the meaning of misconception of fact, the fact must have an immediate relevance. “ “ 17. In the present case in view of the facts as mentioned above we are satisfied that the consent which had been obtained by the accused was not a voluntary one which was given by her under misconception of fact that the accused would marry her but this is not a consent in law.”

• In another important decision the issue the Supreme Court in Deelip Singh @ Dilip Kumar -Appellant versus State of Bihar -Respondent on 3.11.20004 9 frowned upon the physical relationship on promise of marriage and held – “ 26. While we reiterate that a promise to marry without anything more will not give rise to misconception of fact within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 Clause secondly.

Is it a case of passive submission in the face of psychological pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the act she was asked to indulge in? Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her? These are the questions which have to be answered on an analysis of the evidence. The last question raises the allied question, whether the promise to marry, if made by the accused, was false to his knowledge and belief from the very inception and it was never intended to be acted upon by him. As pointed out by this Court in Uday s case the burden is on the prosecution to prove that there was absence of consent. Of course, the position is different if the case is covered by Section 114-A of Evidence Act. Consent or absence of it could be gathered from the attendant circumstances. The previous or contemporaneous acts or the subsequent conduct can be legitimate guides. Whether on the basis of the evidence adduced by the prosecution, it is reasonably possible to infer the lack of consent on the part of the prosecutrix is the ultimate point to be decided. A close scrutiny of evidence of the prosecutrix-PW12 is what is called for, there being no other evidence in the case which could throw light on the point at issue. First, we must exclude from consideration that part of her version which accuses the appellant of forcible sexual indulgence on the first occasion. We have already discussed this aspect and rejected her version as unreliable. Therefore, we have to address ourselves to the twin questions (1) whether there was voluntary participation in the sexual act quite mindful and conscious of what she was doing and its possible consequences and (2) whether the victim girl was misled by the false promise of the accused to marry her and therefore agreed to have sexual contact with him. In a way, these two aspects overlap and are interconnected. Whether on the basis of the evidence on record, is it reasonably possible to hold that the accused with the fraudulent intention of inducing her to sexual intercourse, made a false promise to marry? We have no doubt that the accused did hold out the promise to marry her and that was the predominant reason for the victim girl to agree to the sexual intimacy with him. PW12 was also too keen to marry him as she said so specifically. But we find no evidence which gives rise to an inference beyond reasonable doubt that the accused had no intention to marry her at all from the inception and that the promise he made was false to his knowledge and belief from the very inception.”

1. The Latest position-

The high courts though were mostly unanimous on the issue of fall out of physical relationship on breach of promise of marriage , the supreme court in the latest decision on 21.08.2019 in Pramod Suryabhan Pawar – Appellant Versus The State of Maharashtra & Anr. – Respondents 10 has given the clear outlines or parameters as to determine when the breach of promise and preceding physical relationship  would amount to rape. The court on elaborate discussion on the issue of consent, cheating and meaning of breach of promise in true sense has held the followings-“ Consent with respect to Section 375 of IPC involves an active understanding of circumstances, actions and consequences of proposed act . An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as various possible consequences flowing from such action or inaction, consents to such action. There is a distinction between a false promise given on understanding by maker that it will be broken and breach of a promise which is made in good faith but subsequently not fulfilled. Where promise to marry is false and intention of maker at the time of making promise itself was not to abide by it but to deceive woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates woman’s “consent”. On other hand, breach of a promise cannot be said to be a false promise. To establish a false promise, maker of promise should have had no intention of upholding his word at the time of giving it. Consent of a woman under Section 375 is vitiated on the ground of misconception of fact where such misconception was the basis for her choosing to engage in said act. Consent of a woman with respect to Section 375 must involve an active and reasoned deliberation towards proposed act. To establish whether consent was vitiated by a misconception of fact arising out of a promise to marry, two propositions must be established. 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. False promise itself must be of immediate relevance, or bear a direct nexus to woman’s decision to engage in sexual act”. The court further held that – “ This Court has repeatedly held that consent with respect to Section 375 of the IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action. In Dhruvaram Sonar which was a case involving the invoking of the jurisdiction under Section 482, this Court observed: “15. … 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 mind of a person to permit the doing of the act complained of.” This understanding was also emphasised in the decision of this Court in Kaini Rajan v State of Kerala., (2013) 9 SCC 113: “

12. … “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance of the moral quality of the act but after having fully exercised the choice between resistance and asset. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.”

Similar observations were made by this Court in Deepak Gulati v State of Haryana, (2013) 7 SCC 675 (“Deepak Gulati”): “21. … There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused…” 15. In Yedla Srinivasa Rao v State of Andhra Pradesh, (2006) 11 SCC 615 the accused forcibly established sexual relations with the complainant. When she asked the accused why he had spoiled her life, he promised to marry her. On this premise, the accused repeatedly had sexual intercourse with the complainant. When the complainant became pregnant, the accused refused to marry her. When the matter was brought to the panchayat, the accused admitted to having had sexual intercourse with the complainant but subsequently absconded. Given this factual background, the court observed: “10. It appears that the intention of the accused as per the testimony of PW 1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before the panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused, completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuading the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent….” 16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception of fact” where such misconception was the basis for her choosing to engage in the said act.”

1. Conclusion-

It is hence evident that the expression „under a misconception of fact‟ is enough to include a case where the misrepresentation, made by the accused, leads to a misconception of fact in the mind of prosecutrix, who, believing the misrepresentation made to her and presuming, it to be true and correct, forms a misconception of fact that the accused was definitely going to marry her and acting thereupon, she consents to have sexual intercourse with him. Therefore a representation deliberately made by the accused, with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent if it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry was only a make belief held out only to obtain her consent for sexual intercourse. If a girl surrenders herself to a boy, who comes into contact with her for the first time only in connection with a proposal for her marriage with him and who not only proposes to marry her but also formalizes his promise and strengthens her belief in his promise by entering into a formal ceremony such as engagement with her and thereby convinces her and that he is actually going to marry her, she does it not because she loves him or wants a have pleasure with him, but, because she does not want to disappoint her future husband. She does not, at that stage, harbour any doubt about their forthcoming marriage and therefore allows herself to be persuaded by him to have physical relations with him, in the belief that there was nothing wrong in establishing physical relations with someone who was going to be her husband after a few days. In case, she doubts his intentions as regards the promise made by him, to marry her, she would never succumb to his lusty demands. Therefore taking a view that persuading a girl to have physical relations on the false promise of marriage, despite having no intention to marry, will in no case constitute rape, will amount to putting premium on a conduct which is not only highly reprehensible and abhorable but also criminal in nature. If this is allowed to happen, it will enable immoral and dishonest persons, including those who come to this country for such very purposes, to exploit girls belonging to weaker sections and lower strata of society by alluring them with false promise of marriage pressuring them to have physical relations with them by making them believe that they are going to marry them and that there was nothing wrong in having such relations with a person who is very soon going to be her husband and later on turn; their back at her, in a comfortable belief that the law being on their side, they can easily get away with their misdeeds. The courts cannot and should not give such a licence to those who keep on looking for opportunities to exploit the sentiments and vulnerability of Indian girls who perceive marriage as a pious bonding; and not as a union of two bodies. Allowing such persons to go scot free after exploiting poor and helpless girls in this manner could never have been the intention of the legislature which considered rape to be such a heinous as to attract imprisonment up to life.8   Author - Devajyoti Barman, advocate High Court at Calcutta/Supreme Court of India and Prop. of Ace Legal.   ------------------------------------0------------------------------------------- Footnote-

1. Wikipedia
2. 2002 1 ALT(Cri) 505; 2001 0 ILR(Kar) 4964; 2002 3 KarLJ 609; 2001 4 KCCR 2851; 2002 2 RCR(Cri) 208; 2001 0 Supreme(Kar) 484.
3. 2003 2 Crimes(SC) 176; 2003 0 CrLJ 1539; 2003 0 SCC(Cri) 775; 2003 2 Supreme 145;
4. 2014 4 Crimes(HC) 37;
5. 2018 2 LawHerald 1144; 2018 0 Supreme(P&H) 463;
6. 2019 4 JLJR 144; 2019 0 Supreme(Jhk) 761;
7. 2017 1 AIR(Kar)(R) 535; 2017 2 KCCR 1047; 2017 1 KLR 687; 2016 0 Supreme(Kar) 600;
8. 2007 1 BBCJ(SC) 256; 2006 4 Crimes(SC) 281; 2006 3 JCC 1623; 2006 4 RCR(Cri) 474; 2006 11 SCC 615; 2007 1 SCC(Cri) 557; 2006 8 SCJ 695; 2006 8 Supreme 326; 2006 0 Supreme(SC) 911;
9. 2005 0 AIR(SC) 203; 2005 2 BBCJ(SC) 75; 2005 9 JT 469; 2005 1 PLJR(SC) 119; 2004 4 RCR(Cri) 972; 2004 9 Scale 278; 2005 1 SCC 88; 2004 8 Supreme 266; 2004 0 Supreme(SC) 1395;
10. 2019 0 Supreme(SC) 901;2019(9)scc 608
11. Delhi High Court Nikhil Parasar vs The State Govt. Nct Of Delhi on 1 February, 2010
12. Dhruvaram Murlidhar Sonar v State of Maharashtra, 2018 SCC OnLine SC 3100
13. Yedla Srinivasa Rao v State of Andhra Pradesh, (2006) 11 SCC 615
14. State of Haryana v Bhajan Lal, 1992 Supp (1) SCC 335
15. Deepak Gulati v State of Haryana, (2013) 7 SCC 675
16. Kaini Rajan v State of Kerala., (2013) 9 SCC 113