S.90IPC + S.376IPC = Rape??

Does False promise of marriage and sexual intercourse when combined together culminates into rape or not? This is very controversial topic where many Courts have answered in affirmative while others have dismissed it. Even Supreme Court has taken a conservative view and left it open for the courts to deal it on case to case basis.

The basic understanding of this proposition lies with S.90IPC:

Section 90. Consent known to be given under fear or misconception

A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or

Consent of insane person:- if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or

Consent of child:- unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

Microscopic scrutiny of this section would reveal that, when a misconception of a fact is deliberately created by a person in other person's mind with deception and with intention to deceive the other person this section would be called for operation. Additionally, if we study the whole section, it also mentions about consent of insane person and consent of child. What was the necessity of explicitly mentioning these two categories explicitly? Certainly, while drafting the law, the legislature would have been of the view, that those people who could be deceived easily, like a child, an insane, an illiterate or a person who is backward with respect to his/her socio-economic status could be protected. Those who are well educated and living in metropolitan cities were not the intended category of this section. Thought I agree that this code applies to every citizen without any exception however the application of every section is subject to certain provisions and correct interpretation.

A promise is not a fact within the meaning of the code (IPC). S.90 IPC talks about misconception of existing fact. For example S.493IPC. It defines if a boy deceives a girl by making her believe that she is already legally married to him and then cohabits with her is punishable. Such cases are more the ones where we can draw inference of malicious intention of the boy. But can a promise of a future event about which neither the boy nor the girl could be sure about, amount to creation of misconception?

In Uday’s case (2003), the Hon’ble Supreme Court of India while iterating this proposition added that there could not be any strait-jacket formula and every case is to be treated on its peculiar facts. The court while agreeing with the Jayanti Rani Panda’s case, observed that a full-grown adult girl who understands the morality of the act (physical intercourse) and who also understands the consequences of the act, is matured enough to constitute consent. After indulging into physical relation for so long till she gets pregnant and even her parents do not know about it, is promiscuity on the part of the girl. Such acts of the girl could not be pardoned and the criminal liability could not be fastened on the boy.

Where the girl also knows that physical relation outside the institution of marriage is immoral, then it cannot be said that there was any misconception. The girl knew what she was doing. Allowing complaints of full-grown girls lead to cases like Preeti Jain who accused Madhur Bhandarkar of raping her on pretext of giving her lead role in his films. Didn’t she know that to be a lead actress she should have good face and skills? What made her believe that sleeping with a man could make her a heroine? Similarly, a girl cannot force a boy to marry her just because she had sexual intercourse but she should convince the boy of her skills which are required to be a good wife. A girl cannot be allowed to legally terrorize a boy to marry her.

We have to appreciate that it is false promise of marriage which could be punished under S.376IPC but not the breach of promise. Breach could occur due to many reasons which are out of control of the boy and which even the girl knew since the beginning of the relationship like parents resistance to marriage etc.

Peace

Saurabh..V