The Indian Penal Code 1860 (hereinafter for brevity called “ IPC”) defines rape under Section 375 of IPC. This provision further defines “consent” as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act”.
The section further explores the nature of consent and its manifestations. In simple terms, consent is the most important part of sexual intercourse and it must not be tainted in any manner due to the age of the person, state of mind, coercion, undue influence, intoxication, unsoundness of mind, or deception, to name a few.
Hence, if the consent is obtained under the guise of false promise to marry later, then that shall also be considered as rape. This is reinforced by Section 90 of the Indian Penal Code which provides that consent shall not be considered consent if given under fear of injury or a misconception of fact. Moreover, it is also pertinent here that the person committing such an act must also know or have reason to believe that the consent is being given under such misconception of fact.
What has the Supreme Court held?
In the case of Pramod Suryabhan Pawar v. State of Maharashtra and another, it was held that the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act”. The Court further held that to establish whether the consent can be vitiated by a misconception of fact arising out of a promise to marry, two propositions must be established, which are as follows –
- 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.
- 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 the case of Shambhu Kharwar v. State of UP and another, where the accused and the complainant were in a relationship for three years, and the accused had given the assurance of solemnization of marriage, the Hon’ble Apex Court observed that the ingredients of Section 375 of IPC are absent in the case and, the relationship is purely consensual in nature.
Can the High Court exercise its powers to quash such cases?
In the case of Ms. X v. Mr. A and others, a three-judge bench of the Hon’ble Supreme Court upholding the judgment of the High Court, held that where the allegations do not indicate that the promise to marry was false or even that the promise to marry was not the basis of engagement in a sexual relationship, the inherent powers of the High Court under Section 482 of the Criminal Procedure Code 1973, can be invoked to quash the criminal proceedings.
The High Court, hence, has the power to quash the criminal proceedings against the accused where the two propositions laid down in the Pramod Suryabhan Pawar Case are not established.
Cases where this law has been a means of vengeance and vendetta have increased in recent years. In a case before the Delhi High Court, it was observed by Justice Pratibha Rani:
“Where both persons, out of their own will or choice, develop a consensual physical relationship, and when the relationship breaks up due to some reason, the women use the law as a weapon for vengeance and personal vendetta”.
What does the Bhartiya Nyaya Sanhita, 2023 say?
Section 69 of the Bhartiya Nyaya Sanhita 2023 provides for Sexual Intercourse by employing deceitful means etc, which is as follows:
69. Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
An explanation added to Section 69 of the BNS defines deceitful means as follows:
Explanation.—“deceitful means” shall include inducement for, or false promise of employment or promotion, or marrying by suppressing identity.
What does it all mean?
As the Supreme Court has laid down the law in the Pramod Suryabhan Pawar case and Mr. X vs. Mr. A case, the essence of liberty has been captured and preserved. The freedom to engage in sexual intercourse with a partner of choice has its due space in law. It goes without saying that the new provision under Section 69 of the BNS will be subject to the interpretation of the law as laid down in the abovementioned case laws.