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Consensual Sex Over The Promise Of Marriage Does Not Amount To Rape- Brief Analysis

Updated: Jan 18

Introduction


The Kerala High court in its recent order while granting bail to the accused in Shanil .v. State of Kerala 2020 said that there is a distinction between consensual sexual intercourse and rape. When a rape charge is invoked against a man claiming the same has been performed by accused under the pretext of the false promise of marriage, it is important to observe whether the consent was obtained maliciously only on behalf of the promise to marry. That promise must have to be bogus from the beginning and the accused must not have any intention to perform the same. Only then the act can fall within the ambit of rape.



When a promise becomes mala-fide?


A promise does not become mala-fide itself by the fact that the promiser failed to fulfil the same. It must be proved that the person had no intention to fulfil the same and made such promise only to satisfy his needs. If the accused failed to meet his words out of a certain situation, it may amount to cheating but not rape. The court in this case has relied on the decision of Dhruvaram Murlidhar Sonar .v. The State of Maharashtra, 2018 SC. It is necessary to look out whether a girl has given consent solely on the basis of the promise or out of love and affection. There are a number of instances where a girl files a complaint of rape on the ground of deception by the accused after the relationship has ended. In several cases, it has come out that this has been done by the petitioner either in order to take revenge from the partner or to extort money for withdrawal of the case from the rich parties. The Odisha High court in G. Achyut Kumar .v. State of Odisha 2020, stated that a person involves in sexual intercourse under the promise of marriage does not amount to rape, though the conduct of accused may not be approved socially.


Meaning of consent


Consent is a vital element under Sec. 375 of IPC. It states that there must be an absence of consent to constitute the offence of rape. Also, in cases where the consent is obtained by a misconception of fact, the same would amount to the offence of rape. The number of rape cases registered on the ground of false promise of marriage reserves a good per cent of rape cases reported every year. Courts have time to time provided various orders questioning the validity of such charges. Although there is no prescribed law for the false charges of rape pressed by women under malicious intentions, there is well-settled law for the punishment of rape under section 376 IPC.


The offence of Perjury


The demand for punishment for lodging false rape cases is increasing in the courts. In a few cases, the court has ordered to initiate proceedings under section 191 of IPC for the misuse of the law. Perjury can be defined as the offence of lying to the court under the oath. Section 193 of IPC provides punishment of imprisonment up to seven years. In order to constitute this offence, there must be a statement made under the oath to mislead the court.


Conclusion


The offence of rape itself constitutes to be a heinous category of crime. Such cases need to be dealt with utmost seriousness. A false rape charge against any man can destroy him as well as the life and reputation of his family. Although the court may acquit the accused after the trial once the social reputation is spoiled, this stigma follows the man till death. Thus, there is a need for stringent laws in order to control such cases as there is no specific law to deal with such false accusations.


ABOUT THE AUTHOR

Priya Rana is a final year BBA.LLB student, Galgotias University.

They can be contacted at ranap0030@gmail.com

Edited By: Swathi. Ashok. Nair.

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