Sex without free consent is rape
Sexual intercourse of a man with a woman against her will or without her free consent is rape under, Section 375 of the Indian Penal Code (IPC).
The consent should be an unequivocal voluntary agreement of the woman by words, gesture or any form of verbal or non-verbal communication, by which she communicates her willingness to participate in the sexual act in question.
A consent is not a valid consent, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.
If the woman who alleges rape states in her evidence that she did not consent for sexual intercourse then the court, under Section 114 A of the Indian Evidence Act (IEA) shall presume that she did not consent.
However, a woman, who does not physically resist the act of penetration or sexual act, shall not be regarded as consenting to the sexual activity. That means lack of resistance from her part is no consent at all.
Consent under misconception of fact is no consent
When a person who never intends to marry a lady obtains her consent for sex by promising to marry her, then the consent is no free consent as it was under a misconception of fact coming under Section 90 of the IPC. Then the sexual act between them is rape. In such a case, the consent is a nullity and the man is guilty of having committed rape upon the woman. A consent given on a misrepresentation of fact is also one given under a misconception of fact within the meaning of Section 90 of the Penal Code.
The Section 90 IPC alludes to misconception of fact but not misrepresentation of fact as evident from his intentions. Consent is an act of reason accompanied by deliberation by weighing the balance between the good or evil on each side.
On the other hand, if the consent is not based on such a misconception of fact then the sexual act between them is not rape at all.
False promise without intention is cheating
Similarly, when an accused makes a false promise to marry which he never intends to carry out and induces the victim to the sexual act she would not have indulged in if she had not been induced by such deception, such sexual act causing injury or damage to her valued possessions such as prestige, body, mind or virginity amounts to cheating.
If the victim had not been so deceived, she would have given consent to such an act which must always be a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.
However, the Bombay High Court in Kashinath Narayan Gharat v The State of Maharashtra delivered on 9th December, 2021 held that mere refusal to marry a woman after a long relationship would not constitute cheating under Section 417 of the IPC if there is no evidence of fraudulent misrepresentation of promise of marriage for sex.
Adults have autonomy to engage is sex
Pre-marital sex has become part of an individual’s autonomy. Two consenting adults have enough freedom to enter on sexual activity between them and are answerable to themselves alone.
It becomes an issue arises only when the woman is consenting to such a relationship on the basis of a misrepresentation, such as a promise to marry, which was never intended to be fulfilled.
Courts cannot lay down any watertight formula to determine whether an unfulfilled promise to marry would amount to a misrepresentation of fact. It is well settled that consent obtained by fraud, misrepresentation, concealment of fact and fraud are vitiated.
Free consent is a conscious act
A woman is said to give free consent only when she agrees to submit herself to the sexual act while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to. It always is a voluntary and conscious act.
Pertinent things in promise to marry
In promise to marry two things are pertinent: one is whether the promise to marry was a false promise at the time it was made, and the other is whether such promise was of relevance to the woman’s decision to engage in the sexual act. If one of the aforementioned two factors are absent, the offence of rape cannot be made out.
The sexual act should be against her will and against her consent. Against her will means the act was done despite her resistance and without her consent means that the act was done without reason unaccompanied by deliberation. (see Vijayan Pilla Babu v State of Kerala)
Future uncertain promise has no relevance
The High Court of Calcutta has also consistently taken the view that the failure to keep the promise on a future uncertain date does not always amount to misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance (see Jayanti Rani Panda vs. State of West Bengal and another).
No straight forward answer
There is no straightforward answer to whether sexual intercourse committed consensually by a man and a woman on the basis of a promise made by the man to marry the woman, which is subsequently not honoured, would amount to rape.
There is no straitjacket formula which can be applied to such cases in general. All cases have to examined on their own set of facts.
Further reading
