Rape On False Marriage Promise – Allegation Not Sustainable If Woman Continued Relationship Even After Knowing About Man’s Marriage: Kerala High Court
If a man retracts his promise to marry a woman, the consensual sex they have had will not constitute rape unless it is established that the consent was obtained by him by giving false promise of marriage with no intention of adhering to it, and that promise made was false to his knowledge.
While striking the right chord, the Kerala High Court in a most laudable, learned, landmark and latest judgment titled Sreekanth Sasidharan v. State of Kerala & Ors , has reiterated that if a man retracts his promise to marry a woman, the consensual sex they have had will not constitute rape unless it is established that the consent was obtained by him by giving false promise of marriage with no intention of adhering to it, and that promise made was false to his knowledge.
It must be noted that the Single Judge Bench of Hon’ble Mr Justice Kauser Edappagath while quashing a rape case against a 33-year-old man said that the relationship between the accused and the complainant appears to have been purely consensual in nature. The Court also stated clearly that there is no allegation that when he promised to marry her, it was done in bad faith or with the intention to deceive her.
The statement would further show that their relationship continued till 2019, and they had consensual sexual intercourse several times both in Abu Dhabi and at Chennai. According to her, she came to know about the fact that the petitioner was married five to six years before (i.e., in 2013-14) from one Mr. Praveen. It was alleged that the petitioner told her that he was separately living for the last more than four months and was moving for divorce, and she continued the relationship, and the petitioner used to visit her residence in Chennai and assured her that he would make a proposal for marriage after some time.
Para 10 observing that:
In Uday v. State of Karnataka {(2003) 4 SCC 46} – which was the first in the line of judgments – the Apex Court held that a false promise to marry cannot come within the ambit of ‘misconception of fact’ and that the consent given by the woman to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact.
It was further held that there is no straitjacket formula for determining whether consent given by the woman to sexual intercourse is voluntary or whether it is given under a misconception of fact and that the court needs to look at surrounding circumstances and weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them. However, later, in Deelip Singh v. State of Bihar {(2005) 1 SCC 88}, the Apex Court, for the first time, unequivocally held that a false promise to marry falls within the ambit of the description secondly of Section 375 i.e. without her consent. It was held that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her will vitiate the consent given.
In Pradeep Kumar v. State of Bihar {(2007) 7 SCC 413} while reiterating that a promise to marry without anything more will not give rise to the ‘misconception of fact’ within the meaning of Section 90 of the Evidence Act, clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her will vitiate the consent. The Apex court qualified the proposition that it stated earlier by adding the qualification at the end unless the court can be assured that from the very inception, the accused never really intended to marry her. In Deepak Gulati v. State of Haryana {(2013) 7 SCC 675} and in Dhruvaram Murlidhar Sonar (Dr) v. State of Maharashtra (AIR 2019 SC 327), the Apex Court drawing a distinction between rape and consensual sex, observed that the Court must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust.
Drawing distinction between mere breach of a promise and not fulfilling a false promise, it was further observed that if the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act will not amount to rape and that if the accused had any mala fide intention or had clandestine motives, it is a clear case of rape. Again in Pramod Suryabhan Pawar v. State of Maharashtra and Another {(2019) 9 SCC 608}, the Apex Court held that not every failed promise to marry could lead to a rape charge. The Bench made a distinction between breach of a promise and a false promise, which would lead to ‘misconception of fact’ vitiating a women’s ‘consent’ in law.
It was held that where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a ‘misconception of fact’ that vitiates the woman’s ‘consent’ under Section 375 (rape) of IPC, on the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it, said the judgment. It emphasized that the ‘consent’ of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed action and to establish whether the ‘consent’ was vitiated by a ‘misconception of fact’ arising out of a promise to marry, two propositions must be established :
- 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 Sonu alias Subhash Kumar v. State of Uttar Pradesh (AIR 2021 SC 1405), while quashing a charge sheet alleging an offence under Section 376 of IPC, the Apex Court observed that if there is no allegation to the effect that the promise to marry given to the victim was false at the inception, no offence of rape has been attracted.
Recently in Shambhu Karwar v. State of Uttar Pradesh (AIR 2022 SC 3901), the Apex Court held that in a prosecution for rape on the false promise of marriage, the crucial issue to be considered is whether the allegations indicate that the accused had given a promise to the victim to marry which at the inception was false and based on which the victim was induced into a sexual relationship. It was further held that the test to exercise power under Section 482 of Cr.P.C is whether the allegation in the FIR discloses the commission of a cognizable offence.
Para 11 holding that, The legal position which can be culled out from the judicial pronouncements referred above is that if a man retracts his promise to marry a woman, consensual sex they had will not constitute an offence of rape under Section 376 of the IPC unless it is established that the consent for such sexual act was obtained by him by giving false promise of marriage with no intention of being adhered to and that promise made was false to his knowledge. The prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that the accused had no intention to marry the prosecutrix at all from the very inception.
Para- 12 that:
The crucial issue to be considered is whether the allegations indicate that the petitioner had given a promise to the 4th respondent to marry, which at the inception was false and based on which the 4th respondent was induced into a sexual relationship. A close reading of Annexure A1(a) FI statement, the statements of the 4th respondent recorded under Section 161 of Cr.P.C and under Section 164 of Cr.P.C would show that the allegation of sexual intercourse allegedly had between the petitioner and the 4th respondent is so vague. According to the 4th respondent, the petitioner committed sexual assault on her at his house in Abu Dhabi, at Radha Park hotel in Chennai and at his residence in Chennai. There is no specific mention of the date, time, and other details of those alleged sexual acts under the pretext of marriage.
In essence, the inevitable conclusion that has to be drawn here is that the Kerala High Court has made it abundantly clear that the allegation of rape on a man on false marriage promise is just not sustainable if women continued relationship even after knowing about man’s marriage. It merits no reiteration that all Courts must pay heed to what the Kerala High Court has laid down so very clearly, cogently and convincingly in this leading case. No denying it
