Is sex on the false promise of marriage rape or cheating?

Rape is the culmination of a machismo which controls women forcibly, treating them as properties. In Britain, after the Norman Conquest, the King made rape non-compensable. Earlier, justice was dispensed by tribal chiefs, and all wrongs were compensable. The King did it in order to establish his authority as people were going to tribal chiefs with their complaints. Rape was the first offence to be made non-compensable. Rape led to the breach of peace as a woman was considered the property of the clan and it was perceived as an offence against the clan. Thus, the revulsion that rape created was rooted in woman’s subservience to man.

The concept of treating woman as the property of man is no longer in force. The Supreme Court of India decriminalised adultery in 2018. Section 497 of the Indian Penal Code provided for punishment to only the man for having consensual sex with a married woman. The wife was seen as the property of the husband. Neither is punished today.

Nevertheless, both socially and legally, rape is abhorrent. But for a while now a certain type of this transgression is making headlines. It concerns sex on the promise of marriage. In recent years, the number of these cases has grown exponentially. In 2016, of 38,000 cases of rape, 10,016 — over one-fourth — were such cases, which burdened the courts.

Confronted with the issue in Pramod Suryabhan Pawar v. State of Maharashtra, a division bench of the Supreme Court, comprising Justice D.Y. Chandrachud and Indira Banerjee, clarified that there is a distinction between promises made in good faith and false promises made solely with the purpose of breaking them: “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 ‘consent’.” Under Section 375 of the IPC, the consent of a woman is vitiated on the ground of a “misconception of fact” where such misconception was the reason for her to get into physical relations. In this case, the accused, a CRPF officer, moved the Supreme Court against the decision of the Bombay high court, which rejected his plea to quash the FIR. His partner alleged that she was inveigled into a sexual relationship on a promise of marriage. The two, who knew each other since 1998, belonged to different castes. The complainant was aware of the social impediments in their marriage. She continued to be in relationship from 2008 to 2015. She filed a rape case in 2016 when she came to know that he had married another woman. The Supreme Court observed that despite being aware of the obstacles in the marriage, the complainant travelled to visit and reside with the accused at his places of posting and also allowed him to spend his weekends at her residence. The court ruled that no offence could be made out.

Since such cases are being filed with increasing frequency, a question has cropped up. Should a girl who feels deceived file a complaint under Section 420 IPC that punishes cheating or under Section 376 that punishes rape? After the criminal laws were amended in 2013, the punishment for rape can be a life term or even death in case of a repeat offence. In cases of rape on the promise of marriage, the act takes place on a regular basis. Also, it is extremely difficult to prove whether the promise was genuine or not as it is neither written down nor made publicly. Even if it is meant to cheat someone, the question remains as to whether the person should be punished for rape or for breach of faith. In cases of genuine promises too, one may back out on grounds of incompatibility. Marriages too break down in a few weeks or months. It is not unnatural for a man to change his mind. The Bombay high court, in Rajiv Patil v. State of Maharashtra (2017), found incompatibility a valid reason to separate without fulfilling the promise. Whether the promise is true or false, there is no application of force. Consent is clearly present. The desire for sex is natural and it’s not that only men need sex.

It is true that women are more vulnerable as premarital sex remains a taboo. So they can be more circumspect and abstain till marriage. However, when the woman is poor, she may find herself allowing premarital sex on the promise of marriage in a bid to ameliorate the financial condition of her family. Also, many rural women are unaware of their rights. There is need to safeguard them.

But what about women who trap men and file false cases? A Gurgaon court acquitted a boy of 17 accused of rape. He was in a relationship with a 23-year-old married woman. The court found that the boy, a minor, was in fact the victim. This woman has filed another rape case against another man in Chandigarh. Every false case gives a body blow to many genuine cases.