By Dr Swati Jindal Garg
“Hell hath no fury like a woman scorned.” But what happens if the victim is a man against whom a false rape complaint has been filed by a woman?
India’s legislature has taken giant leaps to emancipate women, but this shouldn’t lead to things going too far. The filing of false complaints against men who are in consensual relationships that turn sour see them falsely accused with rape by their partners.
This was brought to the notice of the Uttarakhand High Court which said in a recent judgment that several women were misusing the law punishing rape. This was used as a weapon against their male partners when they had differences with each other. The observation was made by Justice Sharad Kumar Sharma recently while quashing criminal proceedings against a man who was accused of rape by a woman after he refused to marry her despite having consensual relations since 2005.
Citing various judgments by the apex court, Justice Sharma also reiterated that “a consensual physical relationship between adults cannot be termed rape if one of the parties has refused to marry”. The woman in question had filed a complaint in 2020, stating that the accused had consensual sex with her since 2005. She also said that the two had promised each other that they would get married as soon as either of them got a job. However, the accused later married another woman and their relationship continued thereafter.
The High Court said: “The element of consent automatically gets involved when the complainant had voluntarily continued their relationship even after knowing that the accused was already married.” The Court said that the veracity of an assurance of marriage has to be examined in the initial stage when entering a relationship by mutual consent and not later. In this case, the initial stage cannot be considered when the relationship has already lasted 15 years and even continued after the marriage of the accused.
“Considering the gravity of the offence, though apparently it seems to be a social menace…we have to simultaneously balance the equity and look into the aspect of the contribution or the active role played by a female for the commission of the offence,” the Court observed. Women are misusing Section 376 of the Indian Penal Code (IPC) against their male counterparts for various reasons, including discord, it said.
Women have often been pulled up when falsely accusing a man of rape. However, one cannot ignore the fact that consent was obtained for sexual intercourse on the basis of a false promise of marriage. Most of the times, women are unable to prove a valid reason as to why they continued in a relationship despite knowing that the promise of marriage was false. Do they harbor hope that the relationship might still have a chance? Or do they feel too helpless to withdraw from the situation?
Legally speaking, a false promise of marriage for obtaining consent for sexual intercourse is not considered a valid consent. The man could be charged under Section 375 of the IPC. The second way in which Section 375 can be imposed is when sexual intercourse is done without the victim’s consent.
However, taking note of the misuse of the law, courts have started taking a different approach towards Section 375 and interpreted the term “consent” in a broader way. Various judgments have interpreted consent to be that which violates certain basic principles of statutory interpretation. In certain cases, courts observed that every time a man cannot be charged under Section 375 if he fails to marry a woman despite the fact that he made a promise to marry her. They have said that even though the law seems to be clear on this issue, there is a need for a wider interpretation of statutes to hold an accused guilty under Section 375.
The Orissa High Court too had this year observed that “the law holding that false promise to marriage amounts to rape appears to be erroneous”. Granting bail to a man accused of raping a woman under the pretext of marriage, Justice SK Panigrahi observed that Section 375, which defines the offence of rape, does not mention “consent for the sexual act on the pretext of marriage”. The Court also noted that the facts were “riddled with some visible contradictions” and that as the complainant was an adult woman of sound mind, there “seemed to be no question of anyone being in a position to induce her into a physical relationship under an assurance of marriage”.
In fact, courts have held that it is not rape if a consensual physical relationship was based on a genuine promise of marriage that cannot be fulfilled. In the eyes of the law, to constitute an offence of rape, the absence of free consent from the victim is crucial and essential. But what is free consent?
The answer is provided under Section 13 of the Indian Contract Act, 1872. Consent is said to be free if it is free from coercion, undue influence, fraud, misrepresentation and most importantly, “mistake or misconception of facts”. The question that comes next is what is the status of consent to sex based on the promise of marriage? The law says that consensual sex based on a false promise of marriage is “rape”. Let us take the scenario where a man engages in a physical relationship with a woman for satisfying his lust and maliciously promises he will marry her in future. On the pretext of his bogus promise, that woman gives consent. Here the consent is not free consent and the said act is, thus, rape.
It might seem that in any similar case the accused should be made liable and punishable as the act of rape is heinous and gruesome. However, the trend is changing as the status of modern relationships and society is different. With easy access to social media, it is not uncommon to have a physical relationship with a stranger. Rather, it has become easy. While many see this as the moral degradation of society, can it be called illegal? After all, it is consensual.
With some women using rape laws as a weapon to harass men, it has become more and more challenging for the judiciary to decide such a case. Is it a case of obtaining consent on the basis of a false promise of marriage or of a genuine promise made in good faith, but which subsequently can’t be fulfilled because the situation is not in the accused hands?
One of the landmark cases in this regard was Mandar Deepak Pawar vs The State Of Maharashtra where the apex court differentiated between a false promise to marriage and a breach of promise made in good faith but subsequently not fulfilled. Another one was Pramod Suryabhan Pawar vs The State Of Maharashtra where the Court held that in every case where a man fails to marry a woman despite a promise made to her cannot be held guilty for committing the offence of rape. He can only be held guilty if it is proved that the promise to marry was given with no intention to honour it and also that was the only reason due to which the woman agreed to have a sexual relationship. The Court had also clarified that there was a clear distinction between rape and consensual sex.
It is, therefore, essential to carefully examine in every case whether the accused wanted to marry the complainant or had mala fide motives at the time of making a false promise to satisfy his lust. If it turns out to be the latter, then the woman’s consent will not be considered as consent obtained by the misconception of fact under Section 90 of the IPC.
Marriage is considered a sacrosanct institution and not a contract. It is imperative that girls take their choices seriously instead of consenting to a life altering act merely on the promise of marriage.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi