INTRODUCTION
After giving the genuine promise of marriage if a boy makes physical relationship with a girl with her consent only then will it amount to rape? In some of the cases, fulfilling the promise of marriage is beyond the control of a person. The physical relationship that happened was also as per mutual consent from both of the partners. And no influencing factor is there and any misconception of fact is also absent so section 90 of IPC[1] may not applicable in such cases. Assuming, she consented on her own without any fear of hurt or death, then it is a case of consensual sex which will not constitute as “rape”.
Consensual sex between two adults cannot be termed as “rape”, if sex is established with consent of two adults. There is clear cut distinction between sex and consensual sex. To get legal remedy in this case, the boy has to prove that the sex was happened after her mutual consent.
NOT LINKAGE WITH SECTION 375 OF IPC
Rape is defined in Section 375 of the Indian Penal Code[2] as a sexual act done on a victim who fits into one of the seven categories.
- In defiance of her wishes
- without the approval of the other
- with her consent, if she gave it under duress or fear of death or harm.
- When agreement is provided under the mistaken belief that the man is a husband by the victim.
- when she gives consent while being of unsound mind or drunk and unable to comprehend the nature of the consequences she is consenting to
- If the female is under the age of 18,
- When she is unable to express consent.
Moreover, Consent of a women will be valid on such conditions:
- She must be in her senses.
- She must be capable of consenting
- Consent is not obtained by deceit or putting her in fear.
- It should not be against her will i.e., in spite of her opposing.
- Consent was voluntary.
- She must understand the significance of such acts.
- She must know the consequences of such Act.
- Despite having clear choice of resistance and assent, she chose the latter.
Consent need not to be in writing. It can be implied.
From the aforesaid definitions, it may be deduced that if the boy has made the promise of marriage genuinely, without any intention of misrepresentation or fraud to any girl. The physical relationship happened between them after the mutual consent (without any fraud, coercion, influence etc.) of the girl and if the circumstances become such where the boy could not fulfill his promise at any possible means, then the physical relationship happened between them earlier could not be termed as “rape” as defined in section 375 of IPC.
FAMOUS SUPREME COURT CASES
- Uday versus State of Karnataka[3]: The Supreme Court stated in this instance that there will be no established law to determine such cases. It shall be decided solely on the basis of court opinion. The best intellect in the judiciary will judge whether the consent is consensual or not. S.C. stated that consensual sex cannot be converted into rape charges after reading the definition of “rape” in section 375 and consent in section 90. The prosecutrix’s consent for sexual intercourse with a person she sincerely loves on the promise of marriage, according to the court, cannot be regarded a factual misrepresentation.
- Deelip Singh alias Dilip Kumar versus State of Bihar[4]: In this case, the court initially sought to determine if the girl was subjected to any psychological pressure or influence, or whether her agreement was obtained by deception or fraud. The Supreme Court ruled that the girl in this case made a conscious decision after actively participating in and applying her intellect to the circumstances. Furthermore, the Supreme Court ruled that only a breach of promise to marry can be punished in such circumstances, rather than a case of false promise to marry, for which the accused is prima facie liable for damages under civil law. Rather than charging the lad of making a fraudulent promise of marriage and rape, she may simply demand compensation.
- Deepak Gulati versus State of Haryana[5]: The Supreme Court has made a clear line between rape and consensual sex in this case. Physical relations, according to S.C., were established with both parties’ consent. In no way did the girl object or voice a protest about this. It’s impossible to say that the youngster was acting maliciously. As a result, the court determined that this case does not fall under the terms of Sections 375 and 90 for rape and misrepresentation of facts.
- Shivashankar Shiva vs State of Karnataka[6]: In this situation, the boy and the girl had been together for eight years and lived together. According to the Supreme Court, it is quite difficult to accept this case is one of rape given the evidence. It’s possible that the plaintiff was given a false promise of marriage. Nonetheless, it’s difficult to argue that 8 years of sexual intercourse is “rape,” especially when the preosecutrix herself claims they lived together as husband and wife. In any situation, if the boy’s pledge of marriage was broken due to circumstances beyond his control, but his purpose was pure, it will not be called “rape.”. Sexual intercourse will not be considered if two adults of the same mind make the decision.
CONCLUSION
If the girl files an F.I.R. against the boy, he can go to the High Court to have it dismissed under section 482 of the Code of Criminal Procedure 1973[7], which provides that the High Court’s inherent powers are preserved. Nothing in this Code shall be construed to impede or influence the High Court’s inherent power to prevent abuse of any court’s process or to otherwise protect the goals of justice. However, it should be remembered that high courts are often hesitant to overturn F.I.R. They usually recommend that the case be thoroughly investigated first.
Author’s Name: Jay Kumar Gupta (NMIMS School of Law, Bengaluru)
[1] The Indian Penal Code,1860, &90, No.45 of 1860, Acts of Parliament, 1860 (India).
[2] The Indian Penal Code,1860, &275, No.45 of 1860, Acts of Parliament, 1860 (India).
[3] Uday versus State of Karnataka, Citation-(2003) 4 SCC 46
[4] Deelip Singh alias Dilip Kumar versus State of Bihar Citation-(2005) 1 SCC 88
[5] Deepak Gulati versus State of Haryana Citation – (2013) 7SCC 675
[6] Shivashankar Shiva vs State of Karnataka Citation-Criminal Appeal No 504,2018
[7] The Code of Criminal Procedure,1973, & 482, No. 2 of 1974,Acts of Parliament(1973)
