This article has been written by Heena Jalan, a student of KIIT University, School of Law.
India is modeled on a society that is exceptionally orthodox, conservative, and traditional. Marriage for Indians is a formal society-approved sacred ceremony between two individuals which is also a formal approval of permitting them to have sexual intercourse. Sexual intercourse out/before marriage is criticized and is perceived as something which is contrary to the ethical, moral values and standards of the society. Here the institution of marriage gives the “CONSENT” to have sexual intercourse.
But what happens when a man fails to marry a woman regardless of an already existing promise and the existence of a sexual relationship between them?
Does it mean that the man is guilty of Rape and does it attract the provisions of rape under Section 375 of the Indian Penal Code?
Also, is there a difference between breach of promise and false promise?
Clarifying the legal position, recently the Supreme Court ruled that if a man fails to marry a woman regardless of an already existing promise and there is an existence of a sexual relationship between them, then the man will not be guilty of rape only if it is established/proved by the prosecutrix that:
- The promise of the marriage was false, given in bad faith and with no intention of being obeyed, at the time it was made.
- The woman consented/agreed to have a sexual relationship with the man only on the basis of the promise made by him at that time. This bears a direct nexus/connection to the women’s decision to engage in sexual intercourse.
Also in cases where the man has expressed his hesitations about marrying the woman but they still endure their sexual relationship, it certainly implies that the woman is giving her consent/approval and therefore it can be warranted that the man is not guilty of rape. In 2014, according to a survey, approximately 25% of the rape cases that were filed with the Delhi trial court dealt with “breach of promise to marry”.
A man is guilty of breach of promise when due to certain events, circumstances, or situations the man was incapable/unable to consummate the promise made. Here, the foundation of the promise was not made in bad faith. Instead, a false promise noticeably connotes that promise was bad in faith and the intentions were to deceive the woman and establish a sexual relationship on a false pretext of marrying her. However, where a woman makes a rational choice and further acts on it after assessing all the alterations and consequences amounting from such action, inactions, it is said that the woman has made a reasoned choice.
The Indian Express in an article stated that the city of Bengaluru has seen an upsurge in cases of rape on false promises of marriage, with an average of seven cases per month.
In Sujit Ranjan vs. State, Delhi High Court observed that consent given by the prosecutrix to engage in sexual relations with whom she is in love, on a promise that he would marry her in future, cannot be considered as given under a misconception of fact. The Hon’ble Supreme Court, in Anurag Soni vs. the State of Chhattisgarh, held that “from the very inception, the promise given by the accused to marry the prosecutrix was a false promise and from the very beginning there was no intention to marry the prosecutrix as his marriage with Priyanka Soni was already fixed long back and, despite the same, he continued to give promise/false promise and alluded the prosecutrix to give her consent for the physical relationship. Therefore, considering the aforesaid facts and circumstances of the case, the same cannot be said to be consent. The accused was convicted for the offense under Section 376 of the IPC.”
Hence, their cases are to be scrutinized judicially with utmost precaution and empathy since pre-marital sex is a taboo in India for women. Women have been educated that virginity is the most valued possession a woman has. The law ought to be relooked into otherwise we might land up inflicting an excessive injury on the actual victim’s reputation and life.