Jan 9, 2023
A Promise to Marriage: What is the Legal Position in India?
By Tajamul Islam, VALE Fellow at the Vidhi Centre for Legal Policy and Contributor, Nyaaya
Section 375 of the Indian Penal Code (‘IPC’) defines rape as sexual intercourse with a woman against her will or without her consent. While absence of consent is central to constitute the offence of rape, sometimes courts can also treat consensual sexual intercourse as rape – such as in case of sexual intercourse on the pretext of a false promise of marriage. According to a study by Vidhi Centre for Legal Policy, 42 percent of rape cases disposed by City Civil & Sessions Court, Mumbai between 2015 to 2020 included allegations related to promise to marry.
What is consent under Section 375 of IPC?
When a woman expresses her willingness to engage in a sexual intercourse through words, gestures, or any other kind of verbal or nonverbal communication, it is referred to as consent. The law; further says that a woman who does not physically oppose the act of penetration cannot be seen as consenting to the sexual activity only on the basis of that fact.
The following situations prevent a woman’s permission from being regarded as legal consent:
- When she is being threatened by death or injury to enter into sexual intercourse.
- When a woman consents to have sexual intercourse with her husband but discovers later that she was actually having sex with someone else.
- When she is unable to comprehend the nature and repercussions of the act.
- When she is under 18 years of age.
- When she is unable to express her willingness.
Promise to marry cases: Consent under a misconception of fact
In case of sexual intercourse on the pretext of a false promise of marriage, courts may categorise an otherwise consensual sexual intercourse as rape. If it is shown that:
- The woman’s consent to sexual intercourse is solely based on a promise of marriage made by the man,
- The man had no actual intention of marrying, and
- The promise of marriage was only to induce consent for sexual intercourse,
the consent stands nullified.
Section 90 of the IPC provides that consent given under a misconception of fact is no consent. In promise to marry cases, the false promise of marriage is deemed a misconception of fact. Even though the sexual intercourse was, per se, consensual but under a misconception of marriage, it falls within the definition of rape.
When is a false promise of marriage punishable?
False promise relates to a promise which the accused had no intention to fulfil from the beginning. On the other hand, an inability to fulfil a promise may happen due to many unforeseen factors. In cases of inability to fulfil a promise of marriage, Courts take a completely different view.
In Yedla Srinivasa Rao vs State Of A.P, the accused had sexual intercourse with the girl on the promise that he would marry her. When she became pregnant, the accused refused to marry her, claiming that his parents were against this marriage. The matter came before the Panchayat, where the accused accepted the guilt and promised to marry her, but then absconded from the village. The Supreme Court observed that clearly the girl had sexual intercourse with the accused on the promise made by the accused that he would marry her. The conduct of the accused fell under the offence of rape. Had this promise not been given, she would not have permitted the accused to have sexual intercourse. In this case, the accused was convicted to seven years of imprisonment and fine.
The Supreme Court in Deelip Singh @ Dilip Kumar vs State Of Bihar has made a distinction between inability to fulfill a promise of marriage and a false promise to marry. In this case, a minor girl of around 16 years was induced into sexual intercourse under a promise of marriage, but the marriage did not materialise due to the pressure exerted on the boy by his family members. The Supreme Court explained that this amounted to inability to fulfil a promise and was not a ‘false promise of marriage’. In this case the Court set aside the conviction and set the accused free.
Further, the Supreme Court in Deepak Gulati vs State of Haryana acquitted the accused on the ground that the accused was prevented from marrying the complainant, otherwise his intentions were clear to do so.
The test to see if sexual intercourse can be deemed rape.
Firstly, the 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.
Secondly, the false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.
In Uday v. State of Karnataka, the complainant, a college student, admitted in her statement that she knew from the beginning that her relationship with the accused would attract strong resistance from both their families. The court noted that despite this knowledge, she continued to engage in sexual intercourse with the accused, and in this case, the complainant’s decision to continue sexual relations with the accused was driven by other motives rather than the accused’s promise of marriage.
If the first two conditions are satisfied, the consent is revoked, and the man is responsible for raping the victim. However it is not always the case that two individuals enter into a sexual relationship only with the intention of getting married in future. A woman who is truly in love and makes sexual contact in a romantic relationship with a man, the question of marriage is not brought up there. The courts take this into account when making decisions on the question of rape allegations.
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