Concept of Rape : Whether Physical Relation on Promise of Marriage is Rape ?
By
-- Dr. Pramod Kumar Singh --

ABSTRACT

‘Rape’ is considered to be one of the most serious offences against society. Every woman has a right to maintain her physical status and preserve virginity. Even a woman of easy virtue can not be compelled to have intercourse against her will or consent. ‘Rape’ is sexual act against the will of a woman. If a woman gives her consent for intercourse on a false promise of marriage, such consent cannot be a valid consent but such an act is really a ‘rape’ is a disputed matter and this dispute is yet continued at various levels. The present paper intends to examine the situation with the help of case studies and citations.

INTRODUCTION

‘Rape’ or ‘Sexual assault’ is considered to be a serious offence punishable under Section 376 of IPC. ‘Rape’, broadly speaking, is the ravishment of women against her will.[1] The provisions of Section 376-A IPC is attracted in the case of intercourse by a man committed by a public servant with woman in custody. The sexual assault of a student in school campus by a teacher attracts offence under section 376-B of IPC. The provisions of section 376-C it is attracted when intercourse is made by superintendent of jail, remand home etc. There can be no charge of ‘Rape’ against a woman but if sufficient evidences are available on records, a woman can be charged of abatement of offence of rape committed by co-accused.[2]

The essential ingredients of ‘Rape’ are as follows :

    Against her will

    Without her consent

    With consent obtained by putting her or any other person, in whom she is under custody in fear of death or of hurt

    With consent but given under the misconception of fact that the man was her husband.

The measurement of punishment in a case of rape can not depend upon the social status of the eviction or the accused but it depends upon the conduct of the accused, the state and age of victim and the gravity of criminal act[3]. Consent given by a minor is no consent in the eye of law.

Whether sexual intercourse on false promise of Marriage is a ‘Rape’ ?

A large number of cases of ‘Rape’ are being registered in different part of our country in which the victim alleges that she has voluntarily undergone sexual intercourse with the accused on her false promise of marriage. The opinion of experts and High Courts on the point are different, some High Courts are of the opinion that if the women has given consent for sex on the promise of marriage which turns to be false, it is ‘rape’. Other High Courts are of the views that when an adult woman gives her consent to sex, despite knowing well its consequences and the ad being immoral, then she can not claim to be raped against her will. The following two case-studies, for example, may be taken up for consideration:

         A female Dy S.P. posted at Bhabu (Inalmur) in Bihar lodged FIR against his S.P. alleging ‘rape’ on the false promise of marriage.

        An assistant professor of JNU lodged FIR against her Ph.D. research scholar rape though she admitted sex voluntarily on the promise of marriage.

The Hon’ble Andhra Pradesh High Court in ‘Addepalli Settibabu v. State of A.P.[4] held that in case an educate and adult girl has given consent for sexual intercourse on the false promise of marriage; the such consent is not a valid consent in law as it has been obtained by fraud.

 On the contrary, Hon’ble Calcutta High Court in Hari Manjhi v. State of West Bengal,[5] held that the sexual intercourse with a girl above 16 years, who voluntarily agrees for sexual intercourse on assurance of marriage despite knowing the is not impermissible in society, then such act is not a rape. Similar views were expressed by Hon’ble Patna High Court in  Kuber Chandra Das v. State of Bihar[6] and Hon’ble Apex Court in ‘Pradeep Kumar Verma v. State of Bihar[7] as well.

A third opinion has also come forward, on the point. In a recent judgment in ‘Shanil v. State of Kerala[8] held that accused has actual intention to marry but letter denied due to certain subsequent compelling circumstances, then it is not a rape and if the accused has no intention to marry right from the very beginning and his promise was mala fide, then it is a case of cheating and deception but not a rape.

CONCLUSION

Every woman has right to maintain her physical status and virginity. Even a woman of easy virtue or a prostate cannot be compelled for sex without her consent. But is can not be easily denied that when an adult and educated woman gives her consent for intercourse in anticipation of certain advantages such as monetary benefits, promotion in service, marriage etc. then she can not or should not be permitted to turn around to allege that she was raped. In such circumstances, the essential ingredients of rape i.e. against her will, without her consent are totally lacking. But if the intention of accused was, really mala fide at the time of sexual intercourse of course it is a case of cheating and deception under section 417, IPC but at least not a ‘rape’ under section 376, IPC.



[1] Bhupendra Sharma v. State of U.P., AIR 2003 SC 4684.

[2] Priya Patel v. State, 2006(6) SCC 263.

[3] [Dinesh v. State, (2006) 3 SCC 771]

[4] 1994 Cr.L.J. 1420

[5] 1990 CrLJ. 560 (Cal)

[6] 2004(3) BBCJ 129

[7] 2007 AIR SCW 5322

[8] Bail Application No. 3798 of 2020, order dated 6.7.2020.


01 Aug 2020