Will Sexual Intercourse on a false promise of Marriage amount to Rape?

Cases relating to rape and sexual harassment on a false promise of marriage have been growing rapidly over the past few decades. Being a conservative and traditional society, many women do not report such cases from fear of being publicly shamed. At the same time, many women in the fast modernizing parts of India tend to misuse the provisions of law to mentally harass and seek revenge from their past partners. Therefore, it is very crucial and important for men as well as women to properly understand the nuances of law for their own safety. As live-in relationships are on the rise and the Indian youth is increasingly accepting non-conventional relationships, the intent and scope of laws are also evolving. So let’s try and understand the complex interplay between Rape laws and consensual sex in the context of a false promise to marry.

What is Rape according to the Indian Penal Code, 1860?

The Law against Rape in India is contained in Section 375 of the Indian Penal Code, 1860. It provides a comprehensive, exhaustive, and unambiguous definition of Rape. This means that it covers all the possible acts of rape. Section 375 is not a gender-neutral provision. According to sec 375, only a man can commit rape, and only against a woman. In short, any act constitutes rape by a man against a woman if it involves penetration (either through bodily organ(s) such as penis, hands, fingers, mouth or through material objects) without the consent and against the will of the woman. The major issue in rape cases where a false promise of marriage was made relates to the kind of consent given by the woman/victim. Further, the section also states that a man can threaten a woman to perform sexual intercourse with another man, and this will also constitute rape.

 The section broadly construes three types of rape:

1) Use of Force: When the act of alleged rape was done by using force when the woman refused to consent for the act

2) Statutory Rape: When the victim cannot give consent owing to young age or underdeveloped state of mind and reasoning.

3) Use of Fraud: Extracting consent of the woman using deceit or fraud. This can involve lying about certain facts or making promises without any intention to fulfill them.

Any act of sexual intercourse where consent was given by the woman on basis of a false the promise of marriage will be considered rape under Rape by fraud; however, this is subject to certain legal facts which must be proved in a court of law.

 What is the Nature of Consent in sexual intercourse?

Consent and will of the woman alleging rape is a central issue in cases of rape. Let us look at the nature of consent envisaged in section 375:

a) The act of sexual intercourse was performed against the will of the woman.

b) The act was done without the express consent of the woman.

c) The woman's consent was obtained by force, threat (to kill or harm her or someone else), and duress.

d) The woman's consent was obtained by misleading her to believe on a fact which the man knew was not true (such as misleading the woman to believe that the man was not married etc.)

e) The woman's consent was obtained by intoxicating her or impairing her decision making abilities.

f) Consent given by a female under the age of 16 years (14 years old in case of Manipur) is legally invalid and therefore any act of sexual intercourse followed on such consent constitutes rape.

Section 375 has to be read along with section 90 of IPC as well as section 114A of Indian Evidence Act. The woman need not prove express or implied consent. The court will presume non-existence of consent in rape cases as per section 114A of the Indian Evidence Act. Further, section 90 of IPC states that if consent is given under fear or on a misconception of ‘fact’, then it is not valid consent.

What Is A False Promise Of Marriage?

In cases where a woman alleges rape on the false promise of marriage, the court has to primarily ascertain two facts:

1) The consent was obtained by making the woman believe that the relationship between her and the man will culminate in marriage, that is, there was a promise of marriage.

2) The man had no intention to keep the promise.

Further, according to section 90, a false promise of marriage is not treated as a misconception of fact. A promise is not considered a fact in law.

Through various judgments, the courts have held that a false promise of marriage means a promise given by the man to fraudulently obtain the consent of the woman. The intention of the man is a central issue here. If the alleged offender had every intention to keep the promise, but could not keep the promise owing to an unforeseen and general change in circumstances, then it will not constitute a false promise of marriage.

Will Sexual Intercourse On False Promise Of Marriage Amount To Rape?

Following from above facts and legal pronouncements of various courts, we can safely conclude that an act of sexual intercourse on a false promise of marriage will amount to rape if the man had no intention of keeping the promise but the woman/victim was made to believe otherwise. Section 90 will not be included to judge the nature of consent here. Needless to say, the intention of the accused is a matter of facts and circumstances and will be ascertained by the court. No hard and fast rule can be given for it and the court’s decision will vary from case to case.