Sex after a promise to marry termed as rape: Valid or not?

Sex after a promise to marry termed as rape: Valid or not?

Earlier this year (in January 2019) the Supreme Court in Dr Dhruvaram Murlidhar Sonar vs. The State of Maharashtra & Ors. struck down rape charges filed by a complainant (a nurse) alleging that the accused (a doctor in a government hospital in Maharashtra) had proceeded to marry another woman after having been involved in a live-in relationship with her, despite making promises of marriage. The bench comprising Justices A.K.Sikri and S. Abdul Nazeer held that where two parties voluntarily live together out of love and engage in consensual sex, rape charges cannot be employed as a weapon by the woman in the event the relationship breaks down and does not culminate in marriage. In doing so, the court necessitated that this failure on the part of the accused is understood as a breach of promise to marry rather than a case of false promise to marry.

This aligns with a landmark judgment laid down earlier in 2013 in Deepak Gulati vs. State of Haryana, wherein the Supreme Court of India had held that if a man failed to marry a woman after having consensual sex with her despite having intended to do so, it cannot be termed as rape. Here too, the court was amply clear in drawing attention to the distinction between a “mere breach of a promise” and “not fulfilling a false promise.”

These views extended in the context of failed relationships are hardly a development of recent times. Similar views have been laid down decades ago by Calcutta and Karnataka High Courts in the cases of Hari Majhi vs. The State (1990), Abhoy Pradhan vs. State of West Bengal (1999) and Uday Vs State of Karnatka (2003) respectively.

Given the liberated sexual morals and live-in-relationships of these times, courts in the country have been faced with, and continue to be confronted with these burning questions: does sexual intercourse with a woman on a promise of marriage and subsequent failure to fulfil such promise constitute rape? Or does it amount to cheating? Is the woman (if at all) liable for the consequences that arise from indulging in a relationship of this nature?

A Definite Line between Consensual Sex and Rape: Consent

Since consensual sex is at the base of such relationships, it is important to understand what consent legally means in the light of the breach of a promise to marry and why it wields such power and significance in disputes arising out of relationships that have gone sour.

Section 375 of the IPC (amended) is the relevant provision which outlines seven conditions necessary to convict a man of rape and it is in this delineation that consent has been laid down – as a key factor in at least six of these conditions – to establish the crime. Couched under explanation 2 of the provision, consent has been defined as,

“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.”

While these are the affirmative criteria constituting consent, section 90 of the Code lays down prohibitive/negative connotations associated with the element of consent. The section states, “A consent is not a consent as it 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.”

Thus understood, consent is an act of reason and of free will, “accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side”, as was observed by the Supreme Court in the Deepak Gulati case. This precludes consent obtained through coercion, mistake of fact and/or undue influence (with the perpetrator being aware of it), consent obtained through intoxication and/or from a woman under sixteen years of age (as specified by sections 375 (5) and 375 (6)), thus invalidating any consent that may otherwise be considered to have been obtained willingly. Intercourse in these circumstances would amount to statutory rape and be punishable under section 376 of the IPC.

Would consensual sex, therefore, on a failure of a promise to marry, constitute Rape?

While all the other grounds for determining rape against the criteria of consent are relatively easier to prove, time and again, section 375 (4) of the Code has especially proved difficult to establish. Courts have been inundated with petitions arising out of breach of a promise to marry and have been inclined to invoke the said rule of the IPC, which states that “a man is guilty of rape if he has the knowledge that he is not her husband, but she consented to the intercourse because she believed that he was another man to whom she is or believed herself to be legally wedded.” Thus, consent obtained on the pretext or promise of marriage shall be considered as consent obtained under a misconception of fact and therefore, vitiated. Accordingly, the man would be held guilty of rape under s.376.

A recent case Anurag Soni vs. State of Chhattisgarh (April 2019) deals with the subject, wherein the accused, who despite having been engaged to be married to another girl, continued to hold out the promise of marriage as bait, and eventually established sexual relations with the prosecutrix. He, however, continued to postpone the actual ritual of marriage on some pretext or the other, and despite a social function having been scheduled (by involving the families of both the accused and the victim), the said function did not take place and the accused informed the latter that he had already married. The Supreme Court observed that the accused from the very beginning had mala fide motives and only wished to satisfy his lust, rendering his promise a false one. Consent obtained from the prosecutrix, therefore, would be deemed as consent gained under the misconception of fact, holding him liable for rape.

Contrarily, in the 2016 case of Rohit Tiwari vs. State the Delhi High Court in acquitting the accused laid down that if a grown woman engages in sexual intercourse on a promise to marry, for a considerable period of time, it cannot be said that was she induced to do so on a misconception of fact and that such an act would be considered to have stemmed from her promiscuous nature. The material facts of this case and the Anurag Soni case are not starkly different, in that, in both the cases the victims came to know of the accused persons’ prior involvement with other women (in the Rohit Tiwari case, the accused was already married), and yet, it is not clear why the apex court ruled differently in these circumstances.

Yet again, in State of UP vs. Naushad (2013), the SC imposed life imprisonment on the accused for cheating the prosecutrix, whereas in Manesh Madhusudan Kotiyan vs. State of Maharashtra (2013), the court ruled that the prosecutrix was an educated woman, and hence, could not be deemed to have been induced into sexual intercourse on a false promise of marriage and that the withdrawal of such a promise would not constitute rape as under s. 375 of the Code. Yet again in Rahul Patil vs. State of Maharashtra (2014), the Bombay HC ruled that pre-marital sexual relations were no more shocking and that every breach of promise to marry in such cases cannot constitute rape. In laying down the judgment, the court took care to mention that an uneducated poor girl lured into sexual intercourse on the promise of marriage, would, however, be deemed as rape under s.376 of the Code.

Evidently, it is not clear as to what the courts consider as standard factors in determining consent in the space of sexual relationships, as they often take into account the woman’s character, social class and standing, and other complex criteria to determine if she has indeed been morally and legally wrong.

Navigating these tricky terrains

More often than not, the courts have been inclined to classify such cases (which involved the false promise of marriage) under cheating (s.417). They have, however, also been cautious in stating that a clear demarcation has to be made between a false promise to marry and a breach of a promise to marry, a difference that needs to be culled out from the circumstances of each individual case and careful weighing of all relevant factors. Regrettably, the court’s demand of something as abstract as the element of the accused’s intention from the very beginning fails to deliver justice in it’s entirely since the original intent of the accused is often hard to prove. Consequently, it is then left to the discretion of the courts, leaving the law open to rampant abuse by guilty parties.

This ultimately leaves room for debate and controversy as different sections of the society to extend conflicting opinions of the subject. There are some, like Rebecca John (Sr. Advocate at the Delhi HC) who believes the law is being continually misused by women jilted in such relationships and that both men and women have a right to change their mind about marriage. There are others such as Jayna Kothari, co-founder of Centre for Law and Policy Research and practising counsel at the Karnataka HC who cites that for women, who come from socially and economically disadvantaged backgrounds, this is more than a case of cheating and often involves emotional as well as financial complications, difficult to be viewed objectively and in their entirety by courts as yet.

In a country like India, where a woman’s identity is largely associated with marriage and the “purity of her character and reputation”, delineating consensual sex from the purview of rape on the basis of intent is more complex than it appears. And while courts have in the past been presented with petitions founded on false accusations, often to “settle scores” or “satisfy hurt egos”, it cannot be denied that ruling whimsically on a case-to-case basis can leave the wronged woman to face the social repercussions of the incident alone.

Unlike in English law, where the promise and the reciprocal agreement of marriage have been viewed as a civil contract warranting damages (Short vs. Stone 8 Q.B. 358]), Indian laws do not allow for such remedies to be enjoyed in case of a breach of a promise to marry. Consequently, it leaves many a wronged woman high and dry, sometimes even with a child born out of wedlock while the men are left to go scot-free. In such situations, as has been suggested by senior lawyer and activist Flavia Agnes, the judiciary ought to frame separate rape laws that deal with these particular instances, so that the men implicated can be compelled to pay damages and/or maintenance for the wrong committed.