Need for Woman’s unequivocal Consent in Sexual Intercourse

Unconsented sex amounts to rape

Consented sexual intercourse between two willing adult partners is not an offence in India. But a coerced or unconsented sexual act by a person with a woman amounts to the offence of rape. Even if consent is somehow obtained, the nature of the consent, with low purity and quality, may make the sexual act a punishable offence of rape, as per Section 375 of the Indian Penal Code (IPC) .

However, making a distinction between the two kinds of consent – the consent on free will or the coerced consent – for the purpose of determining whether the sexual act amounts to the offence of rape or not, is a tight rope walk even for the highest court in India.

What rape essentially means

Rape, in essence, is a sexual activity in which one person does not give her consent from the start or withdraws her consent after giving it or is incapable of giving consent. In India such an unconsented sexual intercourse comes within the ambit of rape. Rape is a much-hated crime which brings in extreme humiliation, disgrace and mental agony both to the accused and the victim.

In a sexual act, the consent must be ongoing throughout a sexual activity. It can be revoked by the woman at any time. There must be ongoing consent throughout the sexual intercourse, so as not to consider it as rape.

When a woman says no to a sexual invitation multiple times, and then says yes, that would be treated as coerced consent against her will. That is no valid consent at all. The presence of coercion in obtaining consent wholly negates the concept of valid free consent in sexual matters.

If consent is taken back at any point of time during sex, then the continuation of sexual activity against the will of the lady partner becomes the offence of rape.

Consent must be unequivocal

The consent expressed by a woman involved in a sexual act must be an unequivocal voluntary agreement or willingness to participate in the specific sexual intercourse. It can be communicated by the woman by words, gesture or any form or verbal or non-verbal communication, as per IPC.

That a woman does not physically resist the act of sexual penetration shall not be regarded as consenting to the sexual activity. In short there should be active consent from the part of the woman in order to term a sexual act as a consented one rather than a forced rape, punishable under the IPC.

However, a consent is not a voluntary or willful, if the consent is given by a person under fear of injury, or misconception of fact. It is not a valid consent if the person doing the sexual act knows or has reason to believe that the consent was given in consequence of such fear or misconception.

That means, consent given under a misconception of fact is no consent at all, as per Section 90 of IPC.

Can an unfulfilled promise amounts to misrepresentation?

Whether a promise to marry, which is not fulfilled subsequently, upon which consent is given by a woman to enter into a sexual relationship with a man, would amount to a misrepresentation of fact, is a matter of legal dispute in many cases.

If it does amount to misrepresentation of fact, then the consent obtained as a consequence of such misrepresentation of fact is based on misconception of fact. Hence such a consent thus obtained amounts to no voluntary or unequivocal consent at all.

Therefore, the man, who engages in sex with a woman based on such a promise and consequent consent, is guilty of having committed rape upon the woman. If it does not amount to misconception of fact, then the offence of rape is not at all made out.

Issue of consent must be determined based on facts

In Mahesh Balkrishna Dandane v The State of Maharashtra, the Bombay High Court said that having sexual relationship with a man whether is her conscious decision or not is to be tested independently depending on the facts and circumstances of each and every case and no straight jacket formula or any kind of labelling can be adopted.

The court cannot lay down a watertight formula to determine whether an unfulfilled promise to marry would amount to a misrepresentation in a given case. The issue is to be determined on the basis of the facts of each and every case.

Submission is not consent

in Uday v State of Karnataka the Supreme Court (SC) held that there is a difference between consent and submission.

Every consent involves a submission, and a mere act of submission does not involve consent. Consent of a girl must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one’s will or pleasure. The consent given by the prosecutrix 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 misconception of fact.

There is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact.  So, while considering a question of consent, the court must consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary or was given under a misconception of fact.

The court must weigh the evidence keeping in view that the burden is on the prosecution to prove each and every ingredient of the offence, including the absence of consent.

Consent given under misconception is no consent

The SC, in Uday case, adds that while considering the consent two conditions must be fulfilled for its application. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew or had reason to believe that the consent was given in consequence of such misconception.

The court has to examine whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the offender is conscious of the fact or should have reason to think that the consent would not have been given under fear or misconception. That is what the Section 90 of IPC couched in negative terminology, clearly states.

Promise never intended to keep is a misrepresentation

In Yedla Srinivasa Rao v State of A.P, the SC declared that if it is established on the basis of evidence that the accused made a promise to marry which he never intended to keep, and if such a promise was the basis upon which the victim submitted herself to the sexual desires of the accused, such submission would not amount to consent.

Breach of a promise in a compelling circumstance is not a crime

In Deepak Gulati v State of Haryana, the SC observed that there is a distinction between a mere breach of a promise, and not fulfilling a false promise. There must be adequate evidence to show that at the relevant time of sexual act, the accused had no intention of keeping his promise to marry the victim.

There may be a case where the prosecutrix agreed to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation of fact made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control was unable to marry her, despite having every intention

The mere failure to keep a promise with respect to a future uncertain date or event of marriage, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term misconception of fact, the fact must have an immediate relevance.

Difference between false promise and breach of promise

in Pramod Suryabhan Pawar v State of Maharashtra, the SC explained the distinction between false promise and breach of promise.

The consent of a woman with respect of the offence of rape must involve an active and reasoned deliberation towards the proposed act. 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.

A woman is said to have expressed her consent only when she agrees to submit herself 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 untrammeled right to forbid or withhold what is being consented to. It always is a voluntary and conscious act.

No straightjacket formula in the issue yet

Despite the long line of judgments of the SC, there is no straightforward answer to whether the 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.

All cases have to be examined on their own set of facts. But two aspects need to be examined. Firstly, whether the promise to marry was a false promise at the time it was made, and secondly, whether such promise was of immediate relevance, or bore a direct nexus to the woman’s decision to engage in the sexual act. If one of the aforementioned factors are absent, the offence of rape is not made out.

It is quite difficult for a victim to convey the absence of agreement in a highly contested criminal case of rape. And in criminal cases, the benefit of any ambiguity must always be given to the accused.

Summing up

In a case where a man fails to marry a woman despite his promise to marry her, he cannot be held guilty of rape, unless it is proved that his promise was given with no intention to honour it, and such a promise was the direct reason for her to give consent in the sexual relationship.

On the other hand, a consent obtained on the basis of promise of marriage would not hold good as a defence to rape charge, unless the accused proves that he had actually wanted to marry her, or had no mala-fide motive, or had not made a false promise only to satisfy his lust.

If prosecution fails to prove the sexual act was on false promise or consent was obtained by non-disclosure of material facts, it cannot be termed as rape. But if the woman states in her evidence with foundational facts that the promise was false with necessary elements at the time of sexual act or has to state that there was non-disclosure of material facts affecting her consent, there would be presumption of rape.

However false complaints on rape trivialises the serious offence of rape and make the real cases of rape worthless or insignificant in the long run. Such fake cases should be spotted, discouraged and avoided so as to keep the actual rape cases get serious attention of the courts.