Does Sexual Intercourse upon a False Promise to Marry a Woman, amount to Rape?
This article was written by Tanya Mohanty, a student at Xavier Law School, Xavier University.
Introduction and Facts of the case
This day and age where live-ins and relationships are acknowledged, sex is not anymore rigid, controlled and curbed act. In the midst of changing sexual moralities, the act of consensual sexual intercourse between two majors is viewed liberally.
But on 10th of April, 2019, our Hon’ble Supreme Court replied with a “Yes” to this question of ours, in the case of Anurag Soni Vs. The State of Chhattisgarh. Anurag Soni (Appellant and a major), a doctor and a girl (Respondent and a major) who was a pharmacy student, met, fell in love and Anurag conveyed to the girl that he is interested in marrying her. Since they lived in different cities, the girl boarded a train and went to meet him in April, 2013 and during their meet, they were involved in a sexual intercourse.
After two months, the girl learnt that Anurag got married to someone else. She accused him of rape charges and he was arrested.
Aspect of Law
“A man is said to have committed “rape” who, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: —
- (First)— Against her will.
- (Secondly)—Without her consent.
- (Thirdly)— With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
- (Fourthly)—With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
- (Fifthly)— With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
- (Sixthly)— With or without her consent, when she is under sixteen years of age.
Explanation-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.] STATE AMENDMENT”[1]
On account of State of Uttar Pradesh. Vs Naushad[2], in the similar conditions of the case, the Hon’ble Supreme Court switched the acquittal by the High Court and sentenced the accused for the offense under Section 376 of the IPC seeing as under:
Section 376 IPC endorses the discipline for the offense of rape. Section 375 IPC characterizes the offense of rape, and identifies six descriptions of the same. The depictions furthermore talk about assault without her assent. In this manner, sex by a man with a woman without her consent will establish the offense of rape.
We need to look regarding whether in the present case, the accused is liable for having sex with the prosecutrix against her assent. The prosecutrix for this case has recorded that the accused guaranteed marriage with her and had sex with her and when she got pregnant, his family wouldn’t let him marry her on the ground that she is of awful character.
If rape is all about consent or the lack of consent, then should the consent acquired by false information can truly be consent? Furthermore, if it’s not even true consent, then should that amount to rape?
Under Section 90of IPC[3]–
Consent given under fear/misconception- “Consent isn’t such a consent as is planned by any area of this Code, if the consent is given by an individual under fear of damage, or under a misinterpretation of reality, and if the individual doing the act knows, or has the motive to trust, that the assent was given in result of such dread or confusion;”
When a major woman decided with all her will to have sexual relations with the person she wants to, why rape laws should be a regulating system to that? And what if the man has every intention to marry that woman but due to some unavoidable circumstances, later he prefers to withdraw and changes his mind? So, there are chances that the man never had misinterpreted the facts or cheated and the consent given by the woman is valid under the law.
By comparing tricking or cheating with a sexual assault, I think we are trivializing sexual assault! Which is, and will always remain a horrendous crime.
Even though this law exists for the right cause, it lacks detailing. For instance,if a man had sex with a woman while never encouraging her or promising her that he would marry her and later wouldn’t marry her, the woman can generally go the police and state that it’s rape. It will also be medically demonstrated and assumption of law will be that what the woman says in such a case will be viewed as reality. The burden of the proofwill shift from the prosecution to the defense. This law can result to an overflood of false cases and turn out to be a drawback for the innocents.
The law must know that there is a clear difference between rape and consensual sex and in a situation like this, the court in all aspects should cautiously look at whether the man had really needed to marry the person in question, or had mala fide intentions, and had made a false guarantee with this impact just to fulfil his desires, as the last falls inside the ambit of cheating.
This judgment additionally makes an implicit supposition that pre-marital sex is not alright except if joined by purpose to wed. In any case, sex isn’t a reward for marriage and each example of pre-marriage sex need not finish in marriage.
Conclusion
There is no denying that India is still to a great extent moderate with regards to issues of sex and sexuality. Virginity is prized and a woman who’s known to have had pre-marital sex think that it’s difficult for them to get on with marriage.
India is changing, and another age of optimistic, decisive women focus on career and education before marriage. All things considered, a significant number of these women have faith in their agency, including their entitlement to pick a sexual partner. There is a fundamental patriarchal society that expects that all women who engage in sexual relations are innocent people in desperate need of security by the law. Or then again that a lady who has intercourse with a man other than her better half, or planned, is ruined forever. Which may very well cause, anxiety, strain and mental trauma in years to follow.
Rape should be classified in various degrees relying on the seriousness.
For demonstrating the first-degree rape; some component of force and complete non-availability of consent, should ought to be made an essential. Violent and forceful intercourse; and casualty is expected to prove a first-degree rape. Further, such situations where consent is acquired under a misinterpretation of fact or deception can be charged in the second level of assault with lesser discipline than the main degree. The most troublesome thing to demonstrate under these conditions is whether the accused had any intention of wedding the woman from the earliest starting point or was it only a bogus guarantee as an end-result of sexual favours.
There are numerous words — cheat, dishonest, a rogue— that portray men who lie to woman just so as to engage in sexual relations with them. Rapist shouldn’t be one of them.
[1] Section 375 of IPC
[2] State of UP Vs Naushad (2013) 16 SCC 651
[3] Section 90 of IPC 1860
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