The word "rape" is derived from the Latin term "rapio" which means to "seize". In other words, rape can be defined as the ravishment of a woman without her consent, by force, fear or fraud against her will. Rape is a violation of the violence of the private parts of a woman, an outrage by all means. It is considered the most serious crime as it causes enormous emotional and physical harm that can last throughout the victim's lifetime.

Marriage is considered as a legally recognized union of two individuals as partners which gives them a right to perform their duties and also satisfy their physical desires. Among Hindus, marriage is followed by some traditional rituals for consummation. Therefore, marriage is the beginning of a new family and is also a lifelong commitment among both individuals.

In some cases, it was seen that sexual intercourse has taken place between the individuals before the marriage based on the false promise made by the boy to the girl that he will marry her in the future just to obtain her consent to satisfy his lust. The girls generally give consent for the same based on a promise made to them as they think that in the end they will not get cheated, but if the boy does not fulfil his promise then in such a situation the sexual intercourse will be considered as rape because the consent was obtained by a way of fraud, and it is also possible that she may not have consented for the same if he would not have promised to marry.

In India earlier it was considered that the consent for sexual intercourse obtained by giving a false promise of marriage would not excuse the boy from the charges of rape. It was believed that whenever the accused gives promise to the victim to marry her, he never had any intention to marry and the consent given by the victim will be considered as consent obtained on the misconception of the fact as per Section 90 of Indian Penal Code, 1860 and it will also be considered that he had committed rape on her as per the Section 375 of Indian Penal Code.

Therefore, he can be convicted for the offence under Section 376 of the Indian Penal Code.

What is eccentric to all such cases is the element of consent, and based on such consent, the charge of the rape could be made and not. And the rape on the pretext of the false promise to marriage could be considered as the rape by fraud, and reliance for reading it into the S. 375 of the Act could be placed on the definition of the consent under Section 90 of the Act: as per which if the consent had been given under the misconception of the fact, then such consent could not legally be termed as the consent under the provisions of the Act.

This definition has been read into by the courts into the description secondly under Section 375 of the Act: without her consent. The important question is such that is mutual consent is so important that we forget to think about the self-respect of women or the guilty intention of the man if so found.

However, permission obtained under the guise of a fudulent marriage might not be considered rape for the following reasons:
Section 375 is complete in itself:
It is the rule of the interpretation that the statute that the plain interpretation should be given to the provision which is unambiguous, herein the Section 375, and also that the penal provision ought to be construed strictly and nothing could be read into it. The judiciary cannot, on its own, change or vary the language of the statute, therefore giving birth to a new interpretation.

Under Section 375 there are six descriptions covering all the aspects of the rape, and the common thread within them is the consent or lack thereof. Aside from the first and second descriptions, the rest of the descriptions deal with incidents in which the victim consented. And, under these descriptions, such consent is void if the conditions stated are met.

Thus, based on the foregoing, it is clear that there is a distinction between the various provisions, and circumstances where there is no consent differ from cases where the consent has been vitiated. The case on the pretext of false marriage might fall under the third description, but not under secondly: without her consent, as that would be tantamount to violating the scheme of the Act.

The role of the Judiciary is not to deem what the Legislature had said, but to know what the Legislature said it meant. Had it been the legislative intent to include the cases on the pretext of false marriage as rape, it would be mentioned under any description. Thus, it could not be covered under secondly: which says without her consent.

Section 90's definition of consent could not be read into Section 375
Since the consent and its ancillary matters are dealt with by Section 375 of the Act, the definition of consent granted under Section 90 of the General Exceptions could not be applied to Section 375 of the Act. From the thirdly to sixthly are covered the cases wherein the consent could be vitiated, which inter-alia includes the consent that has been given under the fear; but that per se could not deem to mean that such provisions providing for the invalidation of the consent would also include thereunder the consent being vitiated owing to the misconception of the fact.

Further, it could be said that the explanation on the consent had been given under the amended Section 375, so the question of traversing beyond the provision does not apply. Since the rule is that any general provision could not override the specific provision of law that deals with the subject it.

One case where Section 90 has been applied was State of Uttar Pradesh v Naushad (2013). In this case, the accused Naushad was the son of the paternal uncle of the prosecutrix- Shabana's father who is the informant. The informant complained that Naushad often used to visit his house and enticed her daughter to have sexual intercourse with him based on a promise that he will marry her.

The informant came to know about this when Shabana told her mother that Naushad cheated on her and she had gotten pregnant. The issue that arises under this case was whether Naushad can be held guilty for committing the offence of rape or not. The Court held Naushad guilty for the offence of rape under Section 375 of the Indian Penal Code and was also sentenced to life imprisonment with a fine of ₹10,000 under Section 376 of the Indian Penal Code.

Another case was Anurag Soni v State of Chhattisgarh (2019). In this case, a girl studying Pharmacy knowing that the appellant's marriage has been fixed with some other lady whose name was Priyanka Soni, gave him the consent to make physical relations with her only when he promised her that he would marry her.

Therefore, the Court held that from the facts it can be concluded that from the beginning the accused had no intention to marry the prosecutrix and he made a false promise to her due to which she gave consent for making physical relations with her. So, as her consent was based on the misconception of the fact under Section 90, her consent will be considered as no consent. Hence, the accused was held guilty for the offence of rape under Section 375 of IPC and the punishment was given to him under Section 376 of IPC.

Also, in Yedla Srinivasa Rao v State of A.P (2006) Section 90 of IPC was applied. In this case, the accused used to come daily to the prosecutrix sister's house and ask her for sexual favour from her. He refused her to participate in such activities with him, but still, he used to persist and persuade her. She resisted for about 3 months.

One day he again came to her sister's house, closed the doors of the room and had sexual intercourse forcibly, without her consent as well as against her will. When she asked why he spoiled her life, he answered that he would marry her. Hence. Based on this assurance the process of sexual intercourse continued among them and he also kept giving her assurance that he would marry her.

One day she got pregnant and informed the accused about her pregnancy. He gave her some tablets to abort the child, but the tablets did not work. In the third month of pregnancy when she again asked him to marry her, he answered that her parents were not agreeing for the same. She deposed that she would not have promised to her, then she would not have given consent for the sexual intercourse.

The Court after taking into consideration all the aforesaid facts held that the consent was given under the misconception of the fact that the accused will marry her. Therefore, this consent will be considered as no consent and hence, the accused would be held guilty under Section 375 of IPC and the punishment was granted to him under Section 376 of IPC.

In arguendo, even if the misconception of the fact under Section 90 is read into Section 375 that per se would not include the situation of the rape on the false pretext of the marriage.
Even if the definition of the consent provided under section 90 of the Act is read into Section 375 thereof, even then the concept of the misconception of fact could not be left open-ended, more so when the issue pertains to the interpretation of the provision pertaining to the heinous crime:
Rape. In the foreign jurisdictions, only the deceit that has the effect of colouring the nature or the purpose for which sexual intercourse had been gone under could be considered as rape by fraud, and there is apparently nothing like false promise on marriage amounting to rape: as in the latter does know the nature or purpose for doing such act.

Other Judicial Pronouncements:
In Prashant Bharti v. Delhi (2013), the Supreme Court observed that the age of the victim should be taken into consideration to evaluate the issue of consent and to know an indication of how wordly-wise she is, and to what degree she is judged to given her consent based on the belief that the accused will execute his promise of marriage.

In Deepak Gulati v. State of Haryana (2013), the Supreme Court held that an accused can be convicted for the offence of rape under the penal provisions only if there is evidence to show that 'the intention of the accused was mala fide and that he has clandestine motives.'

The Court further observed that the defendant should have adequate evidence to show that he had no intention to marry the victim in the first place. Section 90 of the IPC cannot be invoked in such a situation, to fasten the criminal liability on the accused and to pardon the act of the victim in entirety unless the court is assured of the fact that the accused never intended to marry the victim from the very beginning.

In G. Achyut Kumar v. State of Odisha (2020) the Orissa High Court held that if a person engages in sex on a false promise of marriage than it does not constitutes rape within the meaning of Section 375 of IPC. The Court observed that the law specifically provides the provisions where 'consent' amounts to 'no consent' in terms of Section 375 of IPC and 'consent on false promise to marry' is not included within the meaning of Section 375.

In Uday v. State of Karnataka (2003), the Supreme Court observed that the consent given by the victim to sexual intercourse with a person whom she is deeply in love on a promise to marry her in future, cannot be said to be a misconception of fact under Section 90 of IPC and hence, the accused will not be convicted for rape within the meaning of Section 375.

Conclusion:
Marriage is considered a sacred institution in our traditional bound society and the girls are conditioned into an unconditional surrender of self to their husbands. Even Indian laws don't acknowledge non-consensual sex within the marriage as rape. Rape has an enduring effect on the lives of the victims as they suffer physically as well as psychological harm as a consequence of sexual violence. The offence of rape causes the greatest distress and humiliation to the victim and also to its family members.

Since the state must protect the life of every citizen, so before convicting any person for the commission of the crime, the facts of each case have to be determined very carefully and also the evidence and the surrounding circumstances have to be taken care of before passing any judgement or taking any decision. Therefore, the cases involving a false promise to marry the intention of the accused must be examined carefully, because any wrong decision or any mistake can cause injustice to the accused.

References:

1. https://www.deccanherald.com/national/sex-with-woman-on-false-promise-of-marriage-is-rape-allahabad-high-court-1016483.html
2. https://timesofindia.indiatimes.com/india/specific-law-needed-on-cases-of-sex-on-false-promise-of-marriage-hc/articleshow/85022129.c
3. https://blog.ipleaders.in/sexual-intercourse-pretext-false-promise-marriage-amounts-rape/

Award Winning Article Is Written By: Mr.Dhiraj Kumar Sharma, Student - Vinoba Bhave University, Hazaribagh Jharkhand

Authentication No: AU221717418883-1-0822