Know The Law | When Can Sex On Promise To Marry Amount To Offence Of Rape?

In this explainer, we will dissect the issue of (1) What is a false promise to marry and how it’s different from a breach of promise to marry?. (2) When can a promise to marry be considered ‘false’? and (3) How can a sexual relationship under the pretext of ‘false marriage’ be considered as an offence of rape?.

The offence of rape is defined under S. 375 of the erstwhile Indian Penal Code (para-materia to S.63 of the BNS). As per the definition, if any man, against the will and consent of a woman, performs the following sexual acts, without her consent, the offence of rape is committed.

The definition of ‘consent’ can be understood from the erstwhile S.90 of the IPC (paramateria to S.28 of BNS) which carves the situation when one may not be giving consent. It states :

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…”

The cases of rape under the false pretext of marriage are based on the argument that the consent given by the woman was based on a misconception of fact that the man would marry her. Hence, the argument is that such a consent cannot be regarded as free consent under the IPC/BNS, and hence, the offence of rape is made out.

When Would A Promise To Marry Be Considered As False And Vitiate Consent To Sexual Relation?

In 2019, the bench of Justice DY Chandrachud and Justice Indira Banerjee in the case of Pramod Suryabhan Pawar v. State of Maharashtra laid down the test to determine when a promise to marry was falsely made to evoke a woman’s consent to sexual relations.

In the said case, the accused had approached the Court seeking to quash an FIR against him for the offence of rape u/s 375 IPC . The complainant had alleged that she and the accused engaged in sexual relations on the promise made by the petitioner in 2008 to marry the complainant. When the accused failed to fulfil his promise in 2016, an FIR was lodged against him the same year alleging rape.

“The “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act,” the Court observed.

The two conditions laid by the Court to hold when an apparent ‘marriage promise’ was false and a misconception of fact were: “ (1) The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. (2) The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.”

The intention behind such a promise and the proximity of timing between the making of such a promise and giving of consent were considered elemental.

The Court also analysed the difference between a false promise and an unfulfilled promise (breach of promise) with the former being relevant in qualifying as a misconception of fact.

It was observed : “Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception of fact” where such misconception was the basis for her choosing to engage in the said act.”

The following table can simplify the observation:

Breach Of Genuine Promise To Marry Would Not Attract Offence Of Rape

Subsequent to the decision in Pramod Pawar, the Supreme Court bench of Justices Ajay Rastogi and Bela M Trivedi in 2023 expanded further on the issue of breach of promise to marry.

In the case Niam Ahmed v. State (NCT of Delhi), the prosecutrix who was already married and had three children, developed sexual relations with the accused over time and a child was also born out of the relationship. When the prosecutix got to know that the accused was also married and had children, she continued to cohabit with him and divorced her previous husband on the pretext that the accused had promised to marry her instead.

As per her complaint in 2015, she alleged that she had consented for sexual relationship with the accused as the accused had promised her to marry and subsequently did not marry.

The bench, while acquitting the accused, observed that a breach of promise to marry due to complications in circumstances would not amount to a misconception of fact or a false promise.

“… in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise. So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376.”

Notably, a similar observation was made by the Apex Court in 2013 in Deepak Gulati v. State of Haryana where the Court held that to prove false promise, it should be shown that in the beginning stage of a relationship itself, the accused had no serious intention to marry the rape survivor. However, where a genuine promise was made but could not be fulfilled due to ‘unavoidable circumstances’ it would not amount to a false promise.

“…there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term “misconception of fact”, the fact must have an immediate relevance”. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.”

To simplify further, let us take an instance where Ms X meets Mr Y over a date and subsequently gets into a relationship. During the course of the relationship developed over a period of time, Mr Y proposes Ms X to marry at a future date, but due to changes in career paths, difference of cities and other social factors, Mr Y is forced up to break up and not fulfil the promise of marriage. Here any sexual relations between Ms X and Mr Y could not be termed as done under ‘misconception of fact’ or false promise of marriage.

Conversely, If Ms X meets Mr Y and the latter insists on having sexual relations which Ms X refuses initially, but only agrees when Mr Y promises to marry with the intention of only receiving sexual gratification and without seriously committing to marriage, then Mr Y could be held liable for rape by giving false promise to marry.

Recent ‘Worrying Trend’ Of Invoking Rape Charges On Breach Of Promise To Marry

In the recent months, the Supreme Court expressed apprehensions on the ‘worrying trend’ where allegations of rape were made on the false pretext of marriage after a long consensual relationship turned sour.

The bench of Justice BV Nagarathna and N Kotiswar Singh observed in Mahesh Damu Khare v. State of Maharashtra :

“It is evident from the large number of cases decided by this Court dealing with similar matters as discussed above that there is a worrying trend that consensual relationships going on for prolonged period, upon turning sour, have been sought to be criminalised by invoking criminal jurisprudence.”

The above was observed while dealing with a petition seeking quashing of charges under Sections 376 (rape), 420 (cheating), 504 (intentional insult), and 506 (criminal intimidation) of the Indian Penal Code (IPC). The complainant alleged that the appellant had engaged in a sexual relationship with her under a false promise of marriage for nearly a decade.

The Court quashed the charges while referring to principles laid down in Pramod Pawar v. State of Maharashtra and Niam Ahmed v. State.

The Court observed that when a woman has maintained a physical relationship with a man for a long period, it cannot be said with certainty that such relationship was solely because of a promise made by the man to marry her. A woman may indulge in a physical relationship with a man for reasons other than the promise of marriage. To attract the offence of rape on the false pretext of marriage, it has to be established that the sexual relationship was based only on the promise of marriage and the consent was vitiated due to misconception of fact when the man refused to marry the woman.

“In a situation where physical relationship is maintained for a prolonged period knowingly by the woman, it cannot be said with certainty that the said physical relationship was purely because of the alleged promise made by the man to marry her. Thus, unless it can be shown that the physical relationship was purely because of the promise of marriage, thereby having a direct nexus with the physical relationship without being influenced by any other consideration, it cannot be said that there was vitiation of consent under misconception of fact.” – SC in Mahesh Dhamu Khare.

In another case (Prashant v. State of Delhi), the bench observed that a person choosing to break up from a long relationship cannot culminate into a crime of rape if there were consensual relations at the beginning of the relationship.

“a mere breakup of a relationship between a consenting couple cannot result in initiation of criminal proceedings. What was a consensual relationship between the parties at the initial stages cannot be given a colour of criminality when the said relationship does not fructify into a marital relationship.”