Wednesday, August 29, 2007

Does Consensual Sex Based on False Promise Amount To Rape?

Yesterday’s newspapers carried reports of a case where the Supreme Court pronounced upon the question whether breach of promise to marry could amount to rape. A link to a report in the Hindu is here.

Briefly as stated in the Hindu, “Pradeep Kumar of Bihar was said to have given a promise to a girl that he would marry her and had a sexual relationship with her. When he did not marry her, the girl gave a criminal complaint and he was charged with offences under Sections IPC 376 (rape) and 406 (criminal breach of trust).

He filed an application for discharge from the case on the ground that the girl had given consent for sexual relationship and hence no offence was made out. The trial court rejected his plea and the Patna High Court upheld the trial court’s order. The present appeal by Pradeep Kumar is directed against this order.”

The Court agreed with the contention of the state that section 406 has no relevance to this case since criminal breach of trust, as defined in section 405, relates only to property matters. To be convicted under section 376 (penalty for rape), the definition of rape as stated under section 375 must be met. Rape is defined therein as sexual intercourse with a woman against her will or without her consent or under certain circumstances when her consent is invalid, i.e. when granted out of fear of death or hurt, when she is of unsound mind or intoxicated or mistakes the man she consents to be her husband. The word ‘consent’ itself, as defined in section 90, declares that when granted under fear of injury or misconception of fact, it is not valid.

The woman’s statement was that the consent she granted for sexual intercourse was conditioned upon the promise of marriage. Citing previous judgments, the Court noted two points in deciding whether this could constitute misconception of fact: (1) consent given pursuant to a false representation regarding intention to marry could be considered consent given under misconception of fact (2) The ‘fact’ must have immediate relevance or the misstatement must refer to existing facts. Hence, for the consent here to be invalid, it would have to be shown that the promise to marry was false at the time it was made, not later. Thus even an unkept promise to marry with nothing more would not amount to an invalid consent but “if it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375…”.

The last sentence of the previous paragraph in particular suggests that the court seems to misunderstand the nature of the offence here. Rape refers only to the limited circumstances surrounding particular act(s) of sexual intercourse and must be distinguished from larger relationship issues such as love, marriage and trust. The court, while looking to precedents to gather the meaning of misconception of fact, appears to have ignored what section 375 itself, in defining rape, has to say on the subject. Here, the specific circumstances wherein a ‘misconception of facts’ may be construed are clearly laid down as in, for example, when the woman consents to intercourse mistaking the person to be her husband. No mention is made in this section of false or broken promises underlining the fact that consent is really about the woman’s state of mind at the time of the act and her willingness to partake in it, the reason for the same being of no relevance at all. Thus I would submit that the condition upon which the consent is granted is of no consequence and even a promise found later to have been false ab initio, contrary to what the Court says, cannot render the consent invalid.

Relationships are complex affairs and numerous things are said that are either meant in half-jest or not meant at all. Holding a person to his/her word where property transactions are involved or enforcing the obligations of a formalized relationship is understandable and violations can be prosecuted under various sections of the IPC. But it is quite different to seek to delve into the innards of an evolving courtship in the abstract where statements are colored by the emotions of the moment and meanings can be multiple, varying with the meandering and often uncertain nature of its progress. Particularly at the courting stage, fantasies are sold – much of the romantic literature of the ages is testimony to that fact; a failure to deliver the moon that was promised at the time could hardly be reason to haul someone up in court. Relationships that fail to culminate in marriage may well engender bitterness that may be strong enough to color the recollection of even previously happy events of the past. Courts hardly ought to be the refuge for every woman upset at being dumped seeking to avenge her ex-boyfriend by filing suit. Yet, the immediate consequence of this judgment will be to open the doors to such frivolity by potentially lending the circumstances of every failed premarital sexual relationship, even in the complete absence of any material indication of coercion, intoxication or misrepresentation, open to judicial examination by trial with the question of validity of consent to be determined in each case by examining evidence and witnesses for promises made and unmade, and the implications of their ‘true’ meaning and timing. Clearly, there is no better way for an overburdened judicial system to shoot itself in the foot. Hopefully, the Court will realize this sooner than later and revise its interpretation.

9 comments:

V.Venkatesan said...

Well-researched post. On the face of it, one was inclined to endorse the SC view that what matters was whether the promise to marry was made in good faith at the time when it was made, prelude to the consensual sex. But if one was already married, and could not have really meant to marry his new lover when he made the promise, then it follows that the promise was not made in good faith, and the fact of his earlier marriage was concealed to obtain consensual sex. I think the court probably had such situations in mind, when it wanted the lower court to rehear the matter in that light.

Dilip said...

Dear VV,
Thanks for the comment. Rape is all about the trauma of the act itself which includes the psychological sense of helplessness, anger, etc. as well as the refusal of consent that manifests itself as bodily unpreparedness leading secondarily to genital and/or other physical injury. Regardless of the value of the promise, the woman believed it at the time of the act. What she suffers from is not the physical and psychological horror of the act itself but only the psychological trauma of recollection of the event later on in light of the revelation of the truth about her partner’s marital status and the consequent sense of betrayal. Much as one may sympathize with her predicament, the offence would not constitute rape and the court’s indulgence is not justified. For questions relating to fraudulent marriage, the proper offence for which he ought to be tried, as the state counsel noted in this case, would be section 493 (Cohabitation caused by a man deceitfully inducing a belief of lawful marriage) and/or section 496 (Marriage ceremony fraudulently gone through without lawful marriage).

Arun Thiruvengadam said...

Very persuasively argued, and spot on criticism. As you note, even if the Court had good intentions behind carving out the exception it proposes (which, at least to me, carried a whiff of misplaced paternalism), it should have pointed instead to the direclty relevant provisions you cite.

Because the newspaper report wasn't clear enough, I read the actual judgment in the case, and your criticisms bear out even after giving the best possible interpretation to the Court's motives and reasoning.

As to why such an attempted expansive interpretation is wrong, I would argue beyond the point you've raised (about this leading to a torrent of potential litigation) and reiterate that this is a criminal statute that is being discussed. The Court's long discussion of the abstractions involved in construing the true import of 'consent' may well be justified in civil cases, but especially in the context of criminal law, judges should stick to textualist intepretations as far as possible. Not doing so would lead to unjust results, which will in the long run harm the criminal justice system irreparably.

While we may personally disapprove of the conduct of the man involved, that should not be translated into a prosecutorial zeal which unsettles both the clear text of the law and established norms of construing criminal texts.

What was more troubling for me was the summary dismissal of the appellant's arguments by both the trial court and the High Court. Given that the appellant's arguments were backed by first principles as well as by substantive case law, I find it worrying that even a High Court judges summarily dismissed his case in a two-line judgment (which is quoted in full in the Supreme Court judgment). Not a particularly good endorsement of the legal skills of High Court judges in general.

V.Venkatesan said...

The issue here is, as I see it, is an expansive interpretation of rape and whether it is justified. It is here the feminist jurisprudence comes in. Dilip's interpretation is fine as long as it is gender-neutral. Granted it was consensual sex, but the question remains whether the woman would have consented to it, had she known the partner's marital status, or his mala fide intentions. S.493 and 496 will not still apply. S.493 will not be attracted as it is a case of concealment of marriage; section 496 will not apply because there was no ceremony. Feminist jurisprudence is unlikely to distinguish between consensual sex fraudulently obtained (because the woman comparatively is vulnerable, and might believe the promises made in exchange for sex) and a rape. Therefore, the stringent punishment meant for the offence of rape may be justified in the case of consensual sex obtained through fraudulent means.

Arun Thiruvengadam said...

Dear Mr. Venkatesan,

I am unsure whether "feminist jurisprudence" is a category that is as clear-cut as you suggest.

Within the feminist movement there is considerable division about the issues that we are focusing upon. While there may be a group of feminist scholars who emphasise a woman's vulnerability in such situations, there are others who would object to the paternalism so rampant in the law where expansive interpretations are accorded to "protect" women. They would point out that most such "protective" interpretations usually emanate from men who want to "protect" the "honour" of "vulnerable" and "innocent" women, thereby reinforcing gender stereotypes, and notions of partriarchy. What happens in such a case if the woman involved is not deemed to be "vulnerable" or is adjudged to be of "loose character"? This has happened so often in rape cases where other interpretive issues were well settled, but still did not result in conviction of the accused (recall the infamous Mathura Rape case).

Is the "protection" of such an expansive interpretation to be accorded only to women who are judged to be "vulnerable" or "innocent"? These problems, apart from the evidentiary ones that Dilip has already highlighted, would make the application of any such judicially crafted exception extremely difficult to implement practically in prosecutions.

If there is indeed usage which points to the fact that "fraudulently obtained consensual sex" is becoming rampant in India (and I highly doubt that such a case can be made), then the proper remedy would be to either craft legislation addressing this particular practice, or to amend the Penal code to add a new offence, which is strictly defined.
This has happened in the case of specific issues such as the Dowry Prohibition Act, with consequent changes to the Evidence Act and other laws, or the Domestic Violence Act.

For judges to stretch the language of existing provisions inordinately to effect their subjective notions of what is just is not a good strategy in general, and particularly so in the context of criminal law.

Dilip said...

Dear Arun and VV,

The reason I mentioned section 493 and 496 is that the judgment mentions in this case a wedding ceremony at a temple and an agreement entered into at that time. I agree that interpreting the rape statute minus the feminist angle would leave a lacuna for fraudulently obtained consensual sex in the absence of marriage. That appears to be the way the IPC is framed for there are few provisions specifically meant to protect unmarried women in relationships.

In the instance Mr. Venkatesan points out, evidence of the man’s marital status would not automatically establish mala-fide intent (the man can always claim he was considering leaving his wife) which would perhaps require additional witnesses or evidence to testify to that. Also, the allegation of fraudulent consent can be made even in the absence of marriage: what if the man were engaged to another woman or had a steady girlfriend? Also, the woman might have other considerations as well besides her potential suitor being a bachelor such as his not being from another caste. So if her sexual partner chose to hide his caste or lie about it, his concealment of the truth might imply a lack of good faith. Thus it would likely render every act of promiscuity legally suspect and where proven to have occurred through fraud, the ‘player’ sentenced for rape.

The dubious basis and impact on the system aside, the moral justification is also open to question. Many people involved in a courtship have dark secrets and men often choose to carefully time the revelation of those that they have a moral and legal obligation to tell. That timing depends entirely on the dynamic of the particular relationship and is not always connected to the sexual aspect. Concealment or prevarication does not therefore necessarily imply mala-fide intent because it is well-nigh possible that the relationship never reached that point of intimacy where a frank discussion of uncomfortable facts was actuated. Given that the IPC explicitly mandates only that marriage be concluded in good faith meaning that truth about his marital status be revealed only at some point prior to the marriage contract being concluded, it begs asking whether it is proper to construe the IPC to demand from the man, as this judgment would by implication, a truthful and sweeping declaration of all relevant facts about his personality before the inception of the first sexual act to demonstrate his good faith. Moreover, is it sensible or reasonable for the state to insert itself into the relationship at that stage and attempt to set the ground rules for how it must proceed? Such policing is almost as stringent as the role of the anti-vice squads in Saudi Arabia. So I think, as Arun suggests, the proper remedy would be to either craft legislation addressing this particular practice, or to amend the Penal code to add a new offence that is strictly defined.

With reference to Arun’s point about the Indian Feminist movement, the dominant strain seems to me to be a curious populist mix of empowerment and paternalism – empowerment through affirmative action, as shown by demands for special privileges and crafting of statutes biased towards that end, and paternalism to protect from or absolve them of the responsibilities entailed as indicated by the recent refusal of the NCW to endorse changes to the IPC to include penalties for women for adultery.

Margot said...

I agree that this may be a crime, but it is not rape (which I view as violent, when it is not statutory because of age of the female being below age of consent). This crime should have a different name, and a different punishment than rape. Something like "false seduction."

Margot, the Marrakesh Mystic
margotmystic.wordpress.wcom

Sunanda Bharti said...

To say that the judgment would give rise to mindless filing of petitions by jilted women is clearly an exaggeration that originates from the presumption that the current petition was also frivolous, or not entitled/eligible to be entertained by courts at any rate. Some others are worried that the interpretation of section 375 has been extended unduly and that whatever transpired cannot be ‘rape’; it has to be something else; an offence of some other variety. All this is intensely amusing and I would tell you why I feel so in a while.

I have been reading with immense interest the comments and rejoinders on this blog for some time now and I feel that the issue requires sensitive dealing that is lacking.

The court has given a novel interpretation to section 90 (consent) of IPC, 1860 and as an inevitable consequence the ambit of section 375 (rape) has also expanded.

Whether there was consent? First pertinent question (for there is more than just one) here is (and I congratulate Mr Venkatesan for literally reading my mind on this)--would she have consented had the man not promised a formal marriage to her. [?] I think not, and the facts of the case clearly reflect this. Yet another important question revolves around a rather unfortunate fact that the IPC, 1860 does not define consent in very clear terms. Section 90 just mentions what cannot be regarded as consent, viz ‘consent given firstly under fear of injury and secondly under a misconception of facts is not consent at all’.

There is clearly a lacuna here. If what is amiss has been duly filled by the judiciary by treating the expression ‘under a misconception of fact’ as broad enough to include all cases where the consent is obtained by misrepresentation, as happened in this case, what is wrong or bizarre in that? Or is it that just because the women community stands to gain with this judgment that all the baseless fears of the other half of humankind are surfacing?

We all know that though India has formal separation of powers, the scope of judicial powers regarding interpretation of statutes/legal provisions, in the interest of greater public or national good, is a well recognized practice. This is not the first time.
We all know that almost every other legislative provision (or law under Art 141 of the Constitution) carries the potential of being misused/abused by, what the apex court brands them, ‘meddlesome interlopers’. At this rate every other petition should be frivolous, but it is not. What then is the point in crying hoarse over the possibility of frivolous petitions as an aftermath in this case? We should rather save our consternations and protests for actual occasions of frivolity and not where the verdict is just.

Let me touch upon the simplest of definitions of consent that we do in law. One particular branch of law says that unless there is ‘consensus-ad-idem’ (meeting of minds) which is characterized by the fact that the concerned parties to an agreement agree to the same thing in the same sense, there cannot be valid consent. This is in my opinion the most wonderful definitions that could have been used, or perhaps was used by the Bench while writing the judgment. In the instant case, while the man perhaps thought--‘I am doing this with no strings attached…I have lulled her into thinking that I am going to marry her…only I know what I am ultimately going to do’; the woman was deluded into believing something different—‘whatever I am doing is not wrong, for after all he has promised to marry me’. There was no meeting of minds. The parties did not agree to the same thing in the same sense at all because the man caused the woman to consent through misrepresentation, which vitiated matters.

Before trashing my perception as an emotional confabulation of facts, one must appreciate that the end of law should be justice otherwise the society is better off without it. At the same time, however, one must understand that all possibilities are not (rather cannot) be taken into consideration while drafting legislations with the inevitable consequence that there can arise a situation which might not be covered by the express wordings of a statute. In such cases, if one expects the judiciary to wait for the legislature to come up with a new legislation or amend the present one are, in my opinion, imprudent choices, specifically in the light of the ever increasing pile of pending cases. Hence, on such occasions, instead of being a slave to an inadequate black letter law, if the judiciary comes to the rescue through a creative interpretation, it should not be assailed as going out of bounds.

Those who are sympathizing with ‘a betrayed woman who is undergoing a psychological trauma of betrayal’ in my view are reading only one aspect of the situation. It is here that a woman’s perception, which is necessarily different from that of a man might come in handy to get the real picture—she does not want sympathy; she demands that the accused be punished. Of course no one can deny that she appreciated and understood the nature of her act and consented to it, but the bottom-line, as I have already stated, is what made her submit herself willingly to the man—it was a false promise. From the woman’s psychological angle, this fact transforms the act from a consensual pleasure activity to a defiled one and from the legal angle also this fact alone is sufficient to make the case fall under section 375 (secondly).

Feminist jurisprudence all over India has, since times immemorial, hankering that it is high time rape is not treated as just another offence against human body, because it is much more. It need not always involve physical violence, as has been classically depicted by this case.

Gargi said...

Dear Ms S. Bharti,

Thank you for precisely putting into words the things which I am exactly feeling now as a victim. And I wish the legal system must be aware that now a days rapists who come in various colours as friends, colleagues, lovers, relatives, strangers etcs are more trickier and cunning and instead of force they play well in deluding a woman of assuring them love, marriage, family and children with the intent of sexually, emotionally, financially exploiting and robbing her with their false ploys. Few women can understand the motive of a shrewd guy who apparantly may seem to be a perfect cultured, educated, smart, genourous, well behaved, softnatured, gentleman. They are smooth operators whom few can recognise, unless it is too late for the woman to face the disaster.