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.
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