Is Sex on The False Promise of The Marriage, Rape?

 Is Sex on The False Promise of The Marriage, Rape?

By Shagun Mahendroo

The question is whether rape is committed when a marriage is formed on the basis of a false promise. Section 375 of the Indian Penal Code, 1860, governs the situation.

The element of consent is peculiar to all such cases, and based on such consent, the charge of rape could be made or not. And rape on the pretext of a false promise to marry could be considered rape by fraud, and reliance for reading it into S. 375 of the Act could be placed on the definition of consent under Section 90 of the Act, according to which consent given under the misconception of the facts could not be legally termed as consent.

The courts have read this definition into the second description under Section 375 of the Act: without her consent. The essential question is whether mutual consent is so important that we fail to consider the women's self-respect or the man's criminal purpose if such is discovered.

Permission gained under the pretence of a forged marriage, on the other hand, may not be regarded as rape for the following reasons:

• Section 375 is self-contained:

 It is the rule of interpretation that the statute should be given a straightforward meaning to the unambiguous provision, such as Section 375, and that the criminal clause should be construed strictly and nothing should be read into it. The judiciary cannot amend or vary the language of a statute on its own, resulting in a new interpretation.

There are six classifications under Section 375 that cover all aspects of rape, with the consent or lack thereof serving as a unifying thread. The rest of the descriptions, with the exception of the first and second, deal with situations in which the victim gave his or her consent. And, under these terms, such permission is null and void if the abovementioned conditions are met.

As a result of the preceding, it is obvious that there is a differentiation between the various clauses, and that conditions in which there is no consent differ from those in which consent has been revoked. The instance involving a phoney marriage might come under the third category, but not the second: without her consent, as that would be a violation of the Act's framework.

The Judiciary's goal is to figure out what the Legislature meant, not to decide what the Legislature said. It would be mentioned under any description if the legislative goal was to include incidents on the pretext of fraudulent marriage as rape.

• The definition of consent in Section 90 could not be read into Section 375:

The definition of consent provided under Section 90 of the General Exceptions could not be applied to Section 375 of the Act because it deals with consent and its ancillary problems. The cases where consent could be vitiated are covered from the third to the sixth paragraphs, which include, among other things, consent given under duress; however, this per se cannot be construed to mean that such provisions providing for the invalidation of consent also include the consent being vitiated due to a misunderstanding of the facts. Furthermore, it might be argued that the consent explanation was given under the modified Section 375, therefore the subject of going beyond the provision is moot. Because the general rule is that no broad provision can override a specific provision of legislation dealing with the subject.