Is it rape or breach of promise?

Live-in relationships, which carry far less legal weight compared to marriage, have now gained social acceptance. A look at the medley of cases before the Supreme Court tells us about an emerging trend of women slapping rape charges against men in soured/failed live-in relationships. The commonest of allegations in the FIRs is that the man obtained her consent for sexual relationship through false promise of marriage.

Rape is defined under Section 375 of Indian Penal Code and the fourthly clause of the provision applies to live-in relationships. It states – A man is said to commit “rape” who has sexual intercourse with a woman with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

In a live-in relationship, it would be naive to assume that the man and woman consent to and indulge in sex believing themselves to be husband and wife. When a woman consents for sexual intercourse, her consent has to be in sync with Section 90 of the IPC, which states that the consent has to be without any kind of fear or misconception.

A reading of Supreme Court judgments would hep distinguish between consensual sex in a live-in relationship and rape.

In Punjab vs Gurmit Singh [1996 (2) SCC 384], the SC had said, “Rape is not merely a physical assault – it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female.” A stringent view, which could hardly be germane to sex between live-in partners.

In Gurmit judgment, the SC sensitised the courts to attach special sanctity to rape survivors’ testimonies and accept them as evidence, even in the absence of corroboration, if not blemished by major contradictions. In the next 25 years, the SC zealously maintained its sensitivity towards sexually assaulted women. But, it also noticed an emerging trend of women filing rape charges against men in a failed live-in relationship.

In Uday vs Karnataka [2003 (4) SCC 46], the SC traced a large number of judgments relating to the issue of lovers failing to culminate their intimate physical relationships in to marriages, which in many cases resulted in filing of rape charges against the men.

It said, “…the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix (complainant woman) to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact.”

“A false promise is not a fact within the meaning of the IPC. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact,” it had said.

The SC had said, “It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married… In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationships.”

In Indra Sarma judgment of November 26, 2013, the SC had said, “live-in-relationship is purely an arrangement between the parties unlike a legal marriage. Once a party to a live-in- relationship determines that he/she does not wish to live in such a relationship, that relationship comes to an end.”

A significant elaboration on distinction between sexual assault and consensual sex among live-in partners came from SC in Dhruvaram Muralidhar Sonar judgment on November 22, 2018. It had said: “there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the man had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception.”

“There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape,” the SC had said.

“There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently…The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC,” it had said.

The men often get prosecuted for rape for failing to keep the promise of marriage in a live-in relationship. What remedy does a man have when the woman, who lived with him and promised to marry, resiles and marries another man?

In England, Scotland, Australia and most European jurisdictions, breach of promise to marry is not an offence. In the US, some States permit filing of suits by the aggrieved party for claiming damages, which is limited to recovering the gifts exchanged between parties pursuant to an agreement for marriage.



Views expressed above are the author’s own.


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