Think twice before making a promise: false promise of marriage and rape Laws **
INTRODUCTION
Promises are meant to be broken, but the legal consequences follow. Unlike, eating and
drinking, Sex requires two individuals and the decisive element of distinction between a
consensual sex and rape is; consent. So, being at the heart of most of the rape cases, consent
has always been the bone of contention between the prosecutrix and the accused. The present
paper analyses that whether the sexual intercourse, consent to which was obtained by false
promise of marriage, should be considered as rape. The above mentioned question has been
argued before different high courts and even before the Supreme Court, many times, but the
conflicting decisions of the courts had left the question unsettled. Finally in case of Dilip
Singh v State of Bihar1, the Supreme Court held that sexual intercourse, consent to which
was obtained on the basis of false promise of marriage amounts to rape. This paper
reprimanding the aforesaid case and argues that the mistake created by such false promise
cannot vitiate the consent and hence the accused must not be convicted for rape.
Lies, lies in human behaviour inherently, individuals lie or make false statements. Consider a
case where a person represents himself as being rich but he is poor and believing on the same
a girl gives her consent for sexual intercourse. How many can agree that there was no
consent? However, there was a mistake in the mind of the girl. Thus, the question is when, if
ever, can the mistake be so serious to vitiate the consent given by a girl? Or, consider a
situation where a man promises to an amount of money to a prostitute in lieu of sexual
intercourse, but later refuses to pay the same. 2 Now, the prostitute cannot recover the amount
as the agreement being an immoral one, but is it justified to book the person with serious
criminal liability as rape?
Indian courts and false promise to marry
The issue whether consensual sex; consent to which was obtained on the basis of a false
marriage, is rape or not, have come before various courts many times. It has been addressed
by the Supreme Court in two important cases, Uday v. State of Karnataka (Hereafter as
1
** Purushottam Anand, 2nd Year, B.A.LL.B (Hons.), National Law University, Delhi. I respectfully extend my
warm thanks to my faculty Ms Ruhi Paul, whose untiring and calm help never discontinued, even on my
persistent irrelevant queries.
AIR 2005 SC 203.
2
Similar facts appeared in the case of R v. Linekar, which will be discussed in details in the Paper under coming
heading common law’s sense of consent.
Uday)3 and Deelip Singh v. State of Bihar4(Hereafter mentioned as Dilip). The courts in India
have categorized the cases of consensual sex; consent to which is obtained on a promise, in
two categories: where the promise could not be performed 5 i.e. breach of promise and cases
where there was a false promise, i.e. promise was made without any intention to perform the
same. The courts opine that in cases where there is a false promise, the consent is vitiated as
there is a mistake of fact and thus the accused is guilty of rape, while in the other category of
cases, there is presence of a valid consent to rescue the accused from the charge of rape.
The question of whether consent obtained by false promise is vitiated by Section 90 first came
before the Calcutta High Court as a revision application in Jayanthi Rani Panda v. State of
West Bengal6 In that case, the respondent was charged with rape under Section 376 of the
I.P.C. for having sexual intercourse with the petitioner, consent to which was obtained by
making a false promise of marriage. Mistake is defined under Section 90 of the Indian Penal
Code, 1960 as:
“[a] Consent is not such a consent as it is intended by any Section of this code, if the consent
is given by a person […] under a misconception of fact”.7
In that case, the respondent was charged with rape under Section 376 of the I.P.C. for having
sexual intercourse with the petitioner, consent to which was obtained by making a false
promise of marriage. The lower court, acquitting the respondent, had ruled that Section 90 is
not attracted, as a false promise is a not a fact and hence is not covered by the expression
“misconception of fact” in Section 90. The Calcutta High Court, on a re-appreciation of facts
found that “it cannot be said that […] accused had no intention to marry the complainant” and
that this is a case of “failure to keep a promise”. Thus, the Court found the present case to be
that of breach of promise and not false promise and held the same not to attract Section 90.
Further, the Court held that for Section 90 to be attracted, the fact misrepresented must be of
immediate relevance and not pertaining to a “future uncertain date”, as in this case. On these
grounds the Calcutta High Court rejected the petition and refused to convict the respondent
under Section 376 for rape.
However, in making the above ruling the High Court, by observing that:
3
AIR 2003 SC 1639.
4
Supra 1.
5
Some writers also refer to them as breach of promise, as in these cases there is no mala fide intention of non-
performance but the accused could not perform the promise due to any other reason.
6
1984 Cri.L. J. 1535.
7
Section 90 of the Indian Penal Code, 1860.
“Section 90 IPC cannot be called in aid of such a case […] unless the Court can be
assured from the very inception that the accused never really intended to marry her”
The case raised an inference, that false promise, as opposed to breach of promise, would
attract Section 90. Following Jayanthi Rani Panda v. State of West Bengal,8 the Calcutta High
Court in Hari Majhi v. State of West Bengal 9 and in Abhoy Pradhan v. State of West Bengal 10,
set aside the conviction of the appellants under Section 376 for rape and under Section 417 for
cheating, holding these cases to involve only a breach of promise and not false promise and
hence, not attracting Section 90.
Further in the case of State of Karnataka v. Anothnidas11, which was also followed in the case
of Honayya v. State of Karnataka12, the Karnataka High Court expressed its view, clearing the
ambiguity of the situation in these words:
“[T]here is a small category of cases which would come within the ambit of rape if the
consent of the woman is by playing fraud on her. That category of cases however, is very
small and the Section itself makes it clear that the fraud has got to be clearly established
and the illustration given is that of an accused person who misleads a woman to agree
to have sexual intercourse on the mistaken belief that the accused is the husband.”
The Supreme Court and the impugned Judgement
The question of whether sexual intercourse, consent to which is obtained by making a false
promise is rape arose before the SC for the first time in Uday. In this case, the appellant had
obtained the consent of the prosecutrix to sexual intercourse by making a promise to marry,
which the lower court and the Karnataka High Court found to be false. Finding the promise to
be false, the lower court held the consent thus given to be covered under “misconception of
fact” and hence held the consequent sexual intercourse to be rape. On the Karnataka High
Court confirming the holding of the lower court, the appellant- accused approached to the SC.
The SC, reasoned that “legal consent, which will be held sufficient in a prosecution for rape,
assumes a capacity to the person consenting to understand and appreciate the nature of the act
committed [Emphasis added]” and hence, sought to construe “misconception of fact” in
Section 90 as misconception as to the nature and consequence of the sexual act. So, unless the
8
Supra 6.
9
1990 Cri.L.J. 650 (Cal.).
10
1999 Cri.L.J. 3534 (Cal.).
11
ILR 2000 Kar. 266.
12
ILR 2000 Kar. 3336.
very nature of the sexual act is misconceived by the victim, there is no mistake capable of
vitiating the consent. The SC held that false promise is not covered within the expression
“misconception of fact” with the result, that sexual intercourse, consent to which is obtained
by making a false promise of marriage, is not rape.13
The decision of the SC in Uday was followed by the Calcutta High Court in Krishna Padho
Mahto v. State of West Bengal14 and in Shamshad Ali v. State15, where it was found that
consent was given understanding the nature and consequence of sexual intercourse, and
accordingly, charges of rape were negatived.16
However, in Deelip case a two judge bench of the Supreme Court, sought to undo the decision
of Uday by ruling that consent obtained by false promise is vitiated by Section 90 and hence,
sexual intercourse, with consent thus obtained, is rape. 17 In this Case, the lower court found
the prosecutrix to be minor at the time of sexual intercourse and accordingly, convicted the
appellant for rape under Section 376. The lower court also held that even if it be asserted that
prosecutrix was not a minor, there is a sufficient evidence to show that the appellant had
sexual intercourse with the prosecuturix “against her will”. On the High Court confirming the
findings of the lower court as regards the age of the prosecutrix at the relevant time, the
appellant approached the SC.
The SC on a re-appreciation of evidence found that neither was the prosecutrix a minor at the
relevant time nor did the appellant have sexual intercourse with the prosecutrix “against her
will”. The charge of rape was then sought to be pressed against the appellant on the ground
that he had obtained consent to sexual intercourse by making a false promise of marriage and
such a consent, covered by the expression “misconception of fact”, is vitiated by Section 90.
The SC, accepting this contention, ruled that a false promise of marriage is covered by the
expression “misconception of fact” and a consent thus obtained is vitiated by Section 90;
accordingly, it was held that sexual intercourse, consent to which is obtained by making a false
promise of marriage, is rape within the meaning of Section 375 of I.PC.
In the instant fact situation, the SC found it to be a case of breach of promise and not false
promise and acquitted the appellant of the charge of rape under Section 376 of the I.P.C. In
finding the above ratio, the SC in Deelip relied on the decision of the Madras High Court in In
13
Supra 3, para 12-13.
14
(2005) 2 CHN 198.
15
(2004) 2 CHN 424.
16
Surya Bala & Rahul Saha, MAKE NO PROMISES AND TELL ME NO LIES: A CRITIQUE OF DEELIP
SINGH V.STATE OF BIHAR AIR 2005 SC 203, 1 NUJS L. Rev. (2008).
17
Id.
Re Jaladu18, which interpreted Section 90 of the I.P.C. as “broad enough to include all cases of
misrepresentation” [Emphasis added] with reference to which consent is given and which
leads to “misconception of fact”. Further Deelip, mentions, “reading the judgment in Uday’s
case as a whole, we do not understand the Court laying down a broad proposition that a
promise to marry could never amount to a misconception of fact”, construed Uday as laying
down the ratio only as regards only breach of promise and not for instances of false promise.
At para 35 of Dilip, the court observed:
“...These statements (of victim) do indicate that she was fully aware of the moral
quality of the act and the inherent risk involved and that she considered the pros and
cons of the act. The prospect of the marriage proposal not materializing had also
entered her mind. Thus, her own evidence reveals that she took a conscious decision
after active application of mind to the things that were happening.”
But, even after accepting the volunteer decision on the part of prosequitrix, the court held that
if the accused has no intention to perform the promise of marriage, he would be held guilty of
rape. This proposition in itself is prima facie unreasonable and inconsistent. The conduct and
statements of the victim evidently portrays her state of mind, where no stains of mistake seem
to exist.
Common Law’s sense of consent
In case of R. v. Clarence19, where the accused, suffering from gonorrhoea failed to disclose the
same to his sexual partner and was tried for rape on the ground that the consent given by the
sexual partner was vitiated by fraud. Stephen J.; acquitting the accused observed that-
“The only sort of fraud which so far destroys the effect of a woman’s consent as to convert a
connection consented to in fact into rape are frauds as to the nature of the act itself, or as to
the identity of the person who does the act. Consent in such cases does not exist at all because
the act consented to, is not the act done”
Further, in R v. Linekar20, the complainant was a woman of 30 working occasionally as a
prostitute. On the evening in question she was working as such near a cinema, when the
defendant approached her and a fee of £25 was negotiated. The defendant made off without
paying and the complainant knocked at a nearby door. She appeared distressed and nearly
18
ILR 36 Mad. 453.
19
[1888] 22 QBD 23, at para 44.
20
[1995] 2 Cr. App. R. 49.
naked and complained she had been raped. The police were alerted and the defendant was
arrested and charged with rape; however the court held that it is not rape rather the accused
should be held guilty for fraud.21
Further, in the historic Flattery 22 case, where the defendant induced a woman to submit to him
pretending that he is performing a surgery and had carnal connection with her, the accused
was convicted for rape as she submitted under the belief that he was merely treating her
medically and performing a surgical operation, not sexual intercourse. In Elbekkay 23 the court
convicted an accused for rape that had sex with the victim who mistakenly believed him to be
her boyfriend.24
A crucial distinction should thus be drawn here as to a consent given under a deception or
mistake as to the identity of person or as to the act itself, namely the act of sexual intercourse,
and a mistake to that act of sexual intercourse induced by a deception or mistake as to a matter
antecedent or collateral thereto25 (fraud in the inducement does not destroy the reality of the
apparent consent; fraud in the factum does26).
Under the first category there will be included cases where the woman is deluded into
supposing that she is undergoing medical treatment, as in Flattery and Williams27, and the cases
where in the dark she is induced to assume that it is her husband who is the man with whom
she is having sexual intercourse, such as Jackson (1822) Russ and Rye 487, 168 ER 911. 28
Within the second heading will come, the cases consent induced by fraudulent representations
made by the man as to matters such as his wealth, lack of sexual infections, freedom to marry
the woman or, as in Linekar29 itself, promise to pay for the sexual services provided. It should
be palpably clear that consent obtained through the device of fraud of the latter type should still
21
The fraud here is related to a subsidiary concern that she should receive payment in the sum of £25 and a s to
the issue of mistake, the prostitute consented to sexual intercourse herself; clearly knowing and understanding the
nature of the act and identity of the defendant (she was conscious).
22
1877) 2 QBD 410
23
[1995] Crim. L. R. 163.
24
See further, Herring, “Mistaken Sex” , [2005] Crim. L.R. 511 and also, Herring, “Human Rights and Rape: A
Reply to Human Gross, [2007] Crim. L. R. 228.
25
Further see, Smith & Hogan, “Criminal Law, 11th Ed. P. - 290
26
cf Harms (1944) 2 DLR 61).
27
The case is an example of a mistake as to the nature of the act, presumably because the girl was not
understanding that the accused was having intercourse with her. The case is considered to be a classic one on its
subject and have been referred frequently in various cases.
28
Alan Reed, Contra bonos mores: fraud affecting consent in rape, NEW LAW JOURNAL, Vol 145 No 6682 p
174.
29
Supra 19.
constitute a valid and subsisting consent. The correct line needs to be drawn over these quite
different headings.30
Thus, as a false promise to marry creates neither any mistake 31 a on the subject matter of
identity of person nor on the nature of the act of act of sexual intercourse, it cannot vitiate
consent of the victim.
In the case R v Dica32 as recent as in 2004, an HIV positive defendant had consensual sex with
two women, without telling them about the fact of their state and the women subsequently got
contracted HIV. The court held that the accused can be convicted for other offences as under
the Person Act 1861, but not for rape.33
American concept of Consent
Promise have been breached every now and then in every society, and thus giving rise to
various conflicts and issues. A case of breach of promise came before the Supreme Court of
New York, in the case of The People of the State of New York v. Martin Evans, also Known
as Martin Sage34, held that:
“It is not criminal conduct for a male to make promises that will not be kept, to indulge
in exaggeration and hyperbole, or to assure any trusting female that, as in the ancient
fairy tale, the ugly frog is really the handsome prince. Every man is free, under the law,
to be a gentleman or a cad. But take heed. Violence, force and threats are totally out of
bounds. Their employment will transform a heel into a criminal.”
The essential element of rape in the first degree is forcible compulsion. 35 The courts have gone
a step further where no any kind of mistake or fraud can vitiate the consent given to a sexual-
intercourse. The prevailing view in the country is that there can be no rape which is achieved
by fraud, or trick, or stratagem, 36 Provided there is actual consent, the nature of the act being
understood, it is not rape, absent a statute, no matter how despicable the fraud, even if a
30
See 25.6 Mistake as to the nature of the act, Glanville William, “Text Book of Criminal Law”, 2 nd Ed. 2009, p.
- 561.
31
Here, the fraud itself is related to an ancillary matter, that is a prospective husband/ wife relationship supposed
to exist in future.
32
[2004] Q.B. 1257, Court of appeal , criminal division.
33
One very similar view was also held in Konzani [2005] 2 Cr. App. R. 98.
34
Trial Term, New York County, 1975 N.Y. Misc. LEXIS 3343.
35
Most states choose to label the crime of rape as sexual assault and there are three or in some states four,
degrees of Sexual assault. Except the first degree rape, there can be violent acquaintance rape, known as a
second-degree felony, and other kinds of sexual coercion constituting the third-degree felony of "gross
sexual imposition.
36
75 CJS, Rape, Ann 91 ALR 2d 593.
woman has intercourse with a man impersonating her husband 37; or if a fraudulent ceremony
leads her to believe she is legally married to a man38, or even if a doctor persuades her that
sexual intercourse is necessary for her treatment and return to good health.39
Australian perception of consent in Rape
In a key decision in the High Court of Australia in Papadimitropoulos case 40 ,was the issue,
inter alia, whether the defendant could be convicted of rape when the "victim" consented to
sexual intercourse under the belief, fraudulently induced by the defendant, that she was
married to him, following a fake marriage ceremony. The High Court unanimously decided
that, whatever other offences may have been committed, the defendant was not guilty of rape
[emphasis supplied]. Their Lordships stated quite categorically that the following principle
applies:
"Rape is carnal knowledge of a woman without her consent: carnal knowledge is the
physical fact of penetration; it is the consent to that which is in question; such consent
demands a perception as to what is about to take place, as to the identity of the man and
the character of what he is doing. But once the consent is comprehending and actual the
inducing causes cannot destroy its reality and leave the man guilty of rape." [Emphasis
added].41
Thus even under Australian jurisdiction a false promise cannot vitiate the consent as to render
the sexual act a rape.
Suggestions and Conclusion
Sexual intercourse; consent to which was obtained on the promise of false marriage, possesses
a valid consent which would operate to rescue the accused from liability for rape. The accused
can be punished for criminal breach of trust or for fraud but must not be convicted for rape. A
distinction is desired between the cases where there is forceful rape; in absence of any consent
and a consensual sex where consent is present, even if it is on account of mistake or whatever.
Sex being a win-win enjoyment for both the participants (If it’s consensual), even the woman
doesn’t undergo any trauma and sufferings in these cases rather even she does it actively with
37
Lewis v State, 30 Ala 54.
38
State v Murphy, 6 Ala 765.
39
. Don Moran v People, 25 Mich 356, also a similar case came in the case of Commonwealth v Goldenberg,
338 Mass 377, cert den 359 U.S. 1001.
40
(1957) 98 CLR 249.
41
Alan Reed, Contra bonos mores: fraud affecting consent in rape, NEW LAW JOURNAL, Vol 145 No 6682
p 174.
her full cognition and will and so even if it is subsequently found that the promiser didn’t
intend to perform it, it cannot be equated with parlance of rape.
However, some opine that such cases should be brought under the purview of rape; the recent
debate on the need for reclassification of rape laws has intensified and is perceived as the
crying need of the hour. An overhauling of rape laws is; what is needed to widen the scope of
the section (so that even women can be convicted under 375 of IPC) and in reclassification;
the offence must be categorized in different degrees depending upon the severity, as it exists
in many Legal Systems.42 For proving the first degree of rape; some element of force and
complete absence of consent, should be made a requisite.43A violent intercourse; in complete
absence [emphasis supplied] of consent of victim is needed to prove first degree rape.44
Further, such cases where consent is obtained under mistake of fact, misrepresentation or
application of fraud can be categorized in second degree of rape 45 with lesser punishment than
the first degree.
If a grown girl consents to the act of sexual intercourse on a promise of marriage and
continues to indulge in such activity, it is an act of promiscuity on her part and not an act
induced by misconception of fact.46 Also it is needed for evolving courtship to delve into the
innards of such abstract promises, where statements (especially promises) are coloured by the
emotions of the moment and their meanings can be multiple, varying with the meandering and
uncertain progress.47 The flux of Law must be interpreted in light of the dynamics of the
society to maintain the mathematics of rights and obligations. In this epoch of empowered,
42
However, even in some other legal systems; besides India, women enjoy immunity from liability under rape
laws. See for example, Michigan Statutes for the first degree felony, section 520b, "(1) A person is guilty of
criminal sexual conduct in the first degree if he or she engages in sexual penetration of another person.", or in the
UK, Section 1 of the Sexual Offences Act 2003 "1. A person (A) commits an offence if - (a) he intentionally
penetrates the vagina, anus or mouth of another person..." - although it should be noted that in this case women
are still not capable of committing rape.
43
Most states choose to label the crime of rape as sexual assault. For example in West Virginia, a person is guilty
of sexual assault in the first degree when that person engages in sexual intercourse or sexual intrusion with
another person and either inflicts serious bodily injury upon anyone or employs a deadly weapon in the
commission of the act (W. Va. Code § 61-8B-3 [1996]). Additionally, a person age fourteen years or older who
engages in sexual intercourse or sexual intrusion with another person who is eleven years old or less is guilty of
first-degree sexual assault.
44
The Model Penal Code (Laws of many states of USA have evolved from provisions from this code) also
established three grades of sexual assaults. Felony rape in the first degree was violent stranger rape. Violent
acquaintance rape was a second-degree felony, and other kinds of sexual coercion constituted the third-degree
felony of "gross sexual imposition." Adapting this model, many states have graded rape offenses by degree of
severity in their statutory schemes.
45
The Law Commission of India in its 172nd report has already submitted to the Government recommended
inter alia that the law relating to ‘rape’ be made gender neutral, wider and more comprehensive to bring it in tune
with the current thinking. The Law Commission proposes of use of term “Sexual assault” for the same.
46
Supra 8.
47
http://lawandotherthings.blogspot.com/2007/08/does-consensual-sex-based-on-false.html.
equal (so, equipped with equal bargaining opportunities) and non- pardanashin women, who
play every move with the cost- benefit analysis of the consequences; who would ensure that
judgements like this would not be misused ? And In the same situation, if the girl refuses to
marry and it is further discovered that the girl never had any intention to marry, would any
court lend its power to attract any liability for the girl? The supreme court of India being a
court of record; its decisions are binding on all high courts. So, the decision in Deelip Singh v.
State of Bihar needs to be overruled before grave repercussions of the decision as in Nikhil
Parasar Vs. The State Govt. NCT of Delhi48 becomes overriding.
Criminal law must not be used to teach moral lessons. 49 As Karnataka High Court in State of
Karnataka v. Anothnidas50 has rightly observed:
“The moral aspects of the case are entirely different because even if a court or a society
disproves of the conduct of the accused in a criminal court, it would not be permissible
to record a conviction unless the strict ingredients of law are satisfied.”
48
MANU/DE/0207/2010
49
See, Hymen Gross, Rape; Moralism and Human Rights, [2007] Crim. L.R. 227. In his Artilce Hymen argues
that by allowing such an exception for women; a civilised society cannot create crimes whose commission will
result in the violation of human rights of the accused.
50
ILR 2000 Kar. 266.
