Rape by a False Promise to Marry: A case-law non-offence

By exalting every act of deceit to the level of rape, we land up doing a great disservice to the actual victims of this most heinous crime.

In 2014, The Hindu did a series on rape cases pending in the Delhi trial courts. It had undertaken the cumbersome task of analysing pending rape cases over a period of six months. This included interviewing various people involved in the process, including judges etc.

At the end of the survey a shocking fact emerged. It was found that of all the cases which had been fully tried, “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”.

These were questionable cases filed for vengeance, and had been running the courts’ time dry. It is because of these false cases that actual rape cases, which Section 375 of the Indian Penal Code was enacted to address, were left pending for years.

The question is whether a false promise to marry comes within the ambit of Section 375 IPC, or is it a case of misplaced sympathy where the remedy is worse than the disease?

This article argues that a false promise to marry cannot come within the ambit of Section 375.

Consent is at the centre of the offence of rape. Based on the nature of the consent or the lack of it, there are three categories of rape in law:

1. Rape by force – where consent has been expressly denied; or where the consent has been given under duress or coercion; or where the victim was incapable of giving consent because of the physical or mental state she was in.

2. Statutory Rape – where the victim was not in a position to give consent because of age.

3. Rape by fraud – Where the consent has been obtained by use of deceit.

Rape by a false promise to marry is an extension of the third category i.e. Rape by Fraud. This new offence has been read into Section 375 of the IPC by using the definition of the word “consent” from Section 90 IPC. According to this definition, consent is vitiated if it is given under a misconception of fact.

Relying on this definition, the courts have interpreted the word “consent” in the description ‘secondly’ under Section 375 i.e. ‘without her consent’; and held that any consent given under a misconception of fact is vitiated and therefore the act becomes an act without consent, thereby making it rape.

This extension and reasoning is a complete fallacy. There are four reasons why any false promise to marry cannot be said to qualify for the offence of rape u/s 375 IPC:

1. Section 375 IPC is an unambiguous and exhaustive provision. Being a penal provision, nothing ought to be read into it. It has to be construed strictly and its words cannot be strained to introduce a new meaning to the offence.

There are six descriptions mentioned in Section 375. Each description is different and distinct from the other. The relevant factor that differentiates each description is the nature and quality of consent or the lack of it.

Descriptions ‘firstly’ and ‘secondly’ deal with cases where consent is altogether missing. In ‘firstly’, the act is committed despite an express denial of consent.

Juxtaposed to this is description ‘secondly’, which deals with cases where the act has been committed without any positive assertion or denial of consent i.e. cases where the victim was not in a physical or mental state to give consent. Therefore, both these descriptions deal with acts done without express or implied consent. Neither of these descriptions deals with the nature of the consent or its vitiation, as the element of consent is completely absent.

The nature of the consent given and its vitiation is relevant in the next three descriptions i.e. descriptions ‘thirdly’ to ‘sixthly’. These descriptions specifically deal with cases where the act has been committed ‘with her consent’. By virtue of these descriptions, the consent given before the act stands vitiated or becomes irrelevant if the circumstances mentioned in the descriptions are applicable.

Therefore, there is a clear distinction between the two broad sets of descriptions. There is no overlap in these descriptions and a case of no consent is very different from a case of a vitiated/invalid consent.

Consent given on the pretext of a false promise to marry is a case of a vitiated/invalid consent. It is not a case where consent was not given at the time of the relevant act. Therefore, putting it under the description ‘secondly’ is a violence to the scheme of Section 375.

Had the legislature intended a false promise to marry to be an offence of rape, it would have been made a part of descriptions ‘thirdly’ to ‘sixthly’. This express omission, so to say, clearly shows the intention of the Legislature. The courts could not have made it to be one by misconstruing the description ‘secondly’.

Therefore, even by using the general definition of the word “consent” provided in Section 90, the said act could not have been read into the description ‘secondly’ of Section 375 IPC.

"By using the general definition of the word “consent” provided in Section 90, the said act could not have been read into the description ‘secondly’ of Section 375 IPC."

2. Section 90 is a general definition in the chapter of General Exceptions and cannot override a specific provision under the Code. The definition of consent under Section 90 could apply to other provisions in the IPC like Sections 87, 88, 89 of IPC, where the term “consent” has been used but not defined or restricted. However, it cannot apply to Section 375, where the scope and nature of consent and circumstances under which it stands vitiated has been expressly defined.

Descriptions ‘thirdly’ to ‘sixthly’ expressly and clearly provide for scenarios where consent would be deemed to be vitiated. These descriptions, while adopting the principle of invalidation of consent given under fear - which is also a part of Section 90 - have clearly left out the principle of invalidation of consent because of ‘misconception of fact’ as a ground to negate the consent given for the relevant act. Moreover, the amended Section 375 has an explanation which itself defines ‘consent’. This explanation now itself ousts the need to use the definition under Section 90.

The general definition clause could not have overridden a clear and exhaustive special provision to introduce into the scope of the section an offence which was not intended by the Legislature.

3. On the other hand, ignoring the above relevant reasons, even if Section 90 is made to apply to Section 375, “misconception of fact” cannot be left undefined with an open end. Doing so in relation to and as an essential ingredient of an offence such as rape would make it unconstitutional.

In jurisdictions where Rape by Fraud is a crime, only such deceit which colours the nature or purpose of the sexual act itself is considered to be a crime. False assurances of marriage are not relevant as they don’t change the understanding in the victim’s mind of the actual “nature or purpose of the relevant act.”[1]

In a case in the United Kingdom, a tutor was convicted of rape for convincing his student to have sexual intercourse with him on pretext that it would improve her singing ability. However, relying on this principle, the court while acquitting the accused of the charge of rape, held that the consent given by a prostitute for having sexual intercourse with the accused on a promise of payment of a certain amount was not vitiated on the accused’s refusal to pay the sum after the relevant act.[2]

Glanville Williams in his Textbook of Criminal Law[3], while discussing this particular issue expressly wrote that,

“in rape, the issue is the woman’s consent to sexual intercourse with this man. If she does not know that the act is one of sexual intercourse, or if she is mistaken as to the identity of the man, then she does not consent, but otherwise she does…There is therefore, no need to inflate the grave offence of rape to make it cover sexual deceits in general.”

In a case of a false promise to marry, the victim is very well aware of the true nature and purpose of the relevant act. This understanding of the relevant sexual act does not get distorted by a false promise to marry. It might motivate the victim, but does not change her understanding of the relevant act.

Therefore, in such circumstances, the accused cannot be said to have committed rape.

The words ‘misconception of fact’ mentioned in Section 90 IPC have to be given a restricted meaning. If not so, any and every exaggeration; act of boasting; or falsity, which motivated the consent, would amount to a ‘misconception of fact’ vitiating consent and thereby turning the act into the offence of rape. The act of deceiving a person to motivate consent is different from deceiving the person of the true nature and purpose of the act itself. Only the latter is Rape by Fraud even though both are acts of deception.

4. Any adjudication on the basis of promise to marry is extremely ambiguous and cannot meet the test of beyond reasonable doubt. The test of ‘real intentions of the offender’ to adjudge a case of ‘misconception of fact’ can readily be applicable in commercial transactions. However, in the context of Section 375 and promise to marry, where complex and intimate human relationships are involved, and where reliable evidence relating to intentions is very private and rare, applicability of the same test is constitutionally questionable.

Moreover, applying the strict rigours/presumptions in evidentiary laws enacted by the legislature for the offence of rape - by which it primarily meant Rape by Force - and the law laid down by the Supreme Court on the sole reliability of the statement of the prosecutrix, to cases of false promise to marry is utterly disproportionate. These grounds are itself enough to question the constitutionality of this caselaw offence.

It is in this light of the above arguments that the Hon’ble Supreme Court in the case of Uday v. State of Karnataka - which was the first in the line of judgments held that a false promise to marry cannot come within the ambit of 'misconception of fact’ - held in the following words:

“21.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…”

This Hon’ble Court in fact went to the extent of keeping the questions of law open on the exhaustive nature of Section 375 in the following words:

“26. In view of our findings aforesaid, we do not consider it necessary to consider the question as to whether in a case of rape the misconception of fact must be confined to the circumstances falling under Section 375 fourthly and fifthly, or whether consent given under a misconception of fact contemplated by Section 90 has a wider application so as to include circumstances not enumerated in Section 375 IPC.”

However, a few years after the above judgment, in a case where the trial court had held the accused guilty of Rape by Force and also of Statutory Rape, and the High Court had upheld this conviction, 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”. This was the case of Dileep Singh v. State of Bihar.

While coming to this firm conclusion, Dileep Singh’s judgment did not consider any of the arguments raised in Uday’s Case. The fact that the question of law had been left open in Uday’s Case was also not considered. Dileep Singh’s judgment, without considering any of the relevant arguments, went to hold that the definition of the word consent cannot be restricted to Section 90; and a definition even wider than the one given in Section 90 can be imported into Section 375 to define the offence of rape.

It finally held 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 given.

The proposition of law laid down in Dileep Singh’s Case is being followed by courts ever since. Important arguments which had been raised in Uday’s Case, because of which the Court thought it correct to leave the question of law open, have still not been considered by any court in any of the subsequent judgments on the issue. Without such consideration, the locus classicus on the issue is itself per incuriam.

In a judgment passed in August 2019, the Supreme Court made adistinction between promises given in good faith and false promises given by the maker knowing that it will be broken.