Nowadays, a highly pertinent issue regarding the definition of rape is frequently being discussed. From a general viewpoint, a man who has sexual intercourse with a woman without her consent is said to commit rape. However, a consensual sex shall also be regarded as rape if the consent given by the woman is obtained by force or by putting her in fear. Therefore, the question arises as to how far it is possible to establish a consensual sex (upon a promise to marry in the future) as rape. The answer can be that it is not possible at all or possible to some extent. Now, the possible extent, if any, will be explored in this writing focusing on the consensual sex engaged upon a promise of future marriage. For better understanding, the topic will be discussed holding two separate issues with an interpretation of relevant laws and case laws.

Whether such an act (consensual sex upon a promise to future marriage) shall be treated as rape under section 375 of Penal Code (PC).

The question regarding the definition of rape drives us towards section 375 of the PC which stipulates five descriptions for the offence of rape if sexual intercourse has taken place thereunder. Apparently, there is no specific clause relating to the promise of marriage at a future date. However, clause 2 of section 375 read with section 90 of PC can be used to specify such events as rape. Clause 2 refers to the sexual intercourse against the victim’s consent and the said consent, if it is given under a misconception of fact, would be considered as no consent under section 90. Here section 90 shall be attracted regarding the validity of a consent which is given under a misconception of fact since section 375 is silent about it.

It is submitted that two conditions must be fulfilled for the application of section 90 regarding the promise. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew or had reason to believe that the consent was given in consequence of such misconception which denotes that the woman was conscious about the act and the consequences of it.[1]

Now, what does the term ‘misconception of fact’ refer to? The misconception of fact that is under discussion is misconception of the promise of future marriage. However, the said term has not been clarified by any of our courts in Bangladesh. In India, there are some judgments regarding this. A latest Indian case Maheshwar Tigga v the State of Jharkhand identifies three important key points for considering a consent given under misconception of fact as equivalent to no consent which run as follows:

  1. The consent must be given by the complainant under a false promise to marry;
  2. The promise to marry has to be false from the inception; and
  3. The false promise must be in proximity of time to the occurrence.

It must be proved by the evidence on record that the accused had mala fide intention when he promised the victim initially regarding the marriage and accordingly in Dhruvaram Murlidhar Sonar v The State of Maharashtra[2], it was stated:

 If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape.

This was first established in Deelip Singh vs State of Bihar[3] where it was statedthat consent given upon a false promise to marry comes within the ambit of the description ‘secondly’ of s375, ie without her consent, as such a consent is tantamount to no consent if it is interpreted as a consent accorded under the misconception of fact which satisfies section 90 and thus rape is committed.

Moreover, from the verdict of a case Pramoud Suryabhan pawar v the State of Maharashtra[4], it is evident that there is a clear thin line between false promise having a mala fide motive and breach of a promise having a bona fide motive and, thereby, these must be treated separately. Therefore, if it is proved that the promise given was bona fide but the accused was unable to perform the promise due to some subsequent complexities,  sexual intercourse under such promise shall not be considered as rape.

Regarding the proximity of time to the occurrence, it was denoted in Maheshwar Tigga case:

Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. (para 14)

However, ‘the proximity of time to the occurrence’ has not been explained here in the above case rather it has set according to the case that the misconception cannot spread over a period of four years. So, here the time limit has been specified negatively stating the proximity of time to be under four years but the judgment says nothing about specific proximity of time. That is why it is submitted that the judgment does not lay down a general rule for all cases and the proximity of time needs to be determined based on the facts of the cases.

So, if these three components are in action in a case then the court should treat the consensual sex as rape. There is no hard and fast rule to determine whether the consent given by the complainant to sexual intercourse is voluntary or whether it is given under a misconception of fact. Moreover, if it is proved that such an act is a consequence of ‘deep-seated love’(Maheshwar Tigga Case), generally, the courts are inclined to ignore further checkpoints. Likewise, with an originalist approach, Orissa High Court observed in G. Achyut Kumar v State of Odisha that the legislative are reluctant to regulate such intimate relationships, especially in cases where the women have the agency to enter into a relationship.

As there is a thin line between these two consents, the victim might misuse it making concocted cases. Because of the fear of aftereffects, the Bangladeshi courts are still reluctant to make a precedent considering such acts as rape with a general perception of free mixing and voluntary consent by the women. Like in the case titled Monwar Malik v the State[5], where the SC of Bangladesh held that whoever (man) involves in sexual intercourse with a girl above the age of 16 years with her consent after having promised her to marry, he will not be held guilty of rape. Here, the court needs to apply its judicial mind and treat every case differently.

How far is this possible to consider such a consensual sex as rape under Nari O Shishu Nirjaton Daman Ain 2000 (NOSNDA)?

As we know, the definition of rape has been enacted in section 375 of PC whereas section 9 of NOSNDA has not been provided with such definition. Instead, the act has stated about rape in section 9 and according to section 2(e) of the said Act, it shall prevail if any dispute arises between section 9 of NOSNDA and section 375 of Penal Code (PC). The relevant portion of section 9 runs as follows:

Whoever has sexual intercourse without lawful marriage with a woman not being under sixteen years of age, against her will or without her consent obtained, by putting her in fear or by fraud… he shall be said to commit rape.

Here a new criterion ‘by fraud’ has been set for the offence of rape which was nowhere mentioned in section 375. ‘By fraud’ means fraudulently and section 25 of PC illustrates that fraudulently refers to something done with an intent to defraud. Here, the word ‘defraud’ refers to causing injury to a person by deceit.[6] So, defraud contains two elements, namely, (i) deceit and (ii) injury to the person deceived. Deceit[7] means an intentional misrepresentation or concealment of the fact and as per section 44 of PC, the injury should be illegally caused to any person in body, mind, reputation or property. Now, when a man misrepresents the initial intention regarding the promise to marry and obtains the consent of the woman, he is said to obtain the consent by fraud. After that, when he engages in sexual intercourse with the woman then he is said to injure the woman. With this, such intercourse would be considered as rape under section 9(1) of NOSNDA (2000).

Moreover, to consider such an act as rape, the element of ‘deceit’ must be initial and must be in proximity of time to the occurrence if we endorse the foreign judgments. As there are so many foreign precedents regarding the matter, our courts should consider the cases consciously and apply their utmost knowledge to filter rape from other sexual intercourses out of deep love.

Conclusion:

The convicted person must have a mala fide intention while making a promise to the woman before marriage. If he had any true intention to marry then the intercourse would not constitute rape. Such mental state should be examined very carefully while treating false promise and a bona fide promise differently. Moreover, the promise must be in proximity of time to the occurrence as reiterated in Maheshwar Tigga Case in India. Our criminal jurisprudence has not been developed so far as to knock every aspect of the said topic but still as per the precedent, no such consensual sex is considered rape in Bangladesh. However, in Uday[8], the court opined that before reaching a conclusion, every court should treat each circumstance differently since every fact has its own peculiarity. Therefore, if it is proved to satisfy the criteria, our courts can consider such a sexual intercourse as rape under the present legal framework until such acts are not clearly prohibited to be considered as rape.


References

[1]Uday v State of Karnataka (2003) AIR (SC) 1639.

[2] (2019) AIR (SC) 327 [20].

[3] (2005) AIR (SC) 203.

[4] (2019) AIR (SC) 4010.

[5] (2009) 17 BLT 25 [41].

[6] Bryan A Garner, Black’s Law Dictionary (9th edn, West Publishing Company 2009) 487.

[7] Bryan A Garner, Black’s Law Dictionary (7th edn, West Publishing Company 1999) 413.

[8]Uday (n 1)

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