SEXUAL INTERCOURSE ON THE FALSE PROMISE OF MARRIAGE-IS IT A RAPE?

AUTHOR: KALPANA KUMARI, AMITY UNIVERSITY.

This research paper is titled “Sex under a Sincere Promise of Marriage – Is it Rape or Not?”. This study seeks to clarify the concept that such encounters can indeed be used to commit rape if two partners engage in consensual sex under the guise of marriage, but if one partner fails to obtain it when he manifests himself and later destroys himself by physical contact, the power changes The relevant statutory framework for this analysis comes from section 69 of the BNS which criminalizes fraudulent sexual intercourse, including a false promise of marriage This analysis establishes a situation where sexual relations are maintained by deception , particularly marriage emphasizes false promises. Although this issue is complex, it invites a closer examination of consensus and the implications of trust in intimate relationships.

Sex without consent is called rape; There is no consent effectively obtained by fraud or deceit. Thus, where the consent of the woman was obtained by deception, sexual assault must be treated as rape. India mainly emphasizes rape through unrealistic promises of marriage—a common remedy in the broader category of rape and cheating. The unique status of marriage in Indian society coupled with the problem of sex a premarital sex creates more difficult situations in the courts, but this cultural climate makes the law more difficult.

False promises of marriage, Fraud and rape, Consent and fraud, Part 69 of the BNS, Sexual relations before marriage.

This is a significant topic of discussion in today’s world as people are aware of their rights and prevailing laws in society for their safety and also for their protection. Having sex while under the pretenses of marriage does constitute rape, we have found in our study and many people from our today’s generation have agreed with this fact. In spite of changes in legal and social standards, the basic question remains: Is sexual contact brought on by a false promise of marriage rape? Examining how consent, compulsion, and the abuse of trust interact, this study explores the ethical, legal, and social ramifications of this complicated problem. We are making an effort to highlight the viewpoint that, yes, it is a form of rape. By making a false marriage vow, this article aims to shed light on several facets of rape. The status quo of the offense is discussed, and the main factors that the courts employ to determine whether an accused person is guilty, or innocent are extracted. The study is predicated on assessments of the previous judgments which have been given by our judiciary based on the same concern which had previously arisen in the past.Sexual intercourse on a false promise of marriage is a serious issue in debate. While societal norms and legal frameworks have evolved, the fundamental question persists: Does sexual intercourse induced by a deceptive promise of marriage constitute rape? This research delves into the legal, ethical, and societal implications of this complex issue, examining the interplay between consent, coercion, and the exploitation of trust. We are trying to emphasize on the perspective that yes it constitutes rape.The article aims to discuss certain aspects of the subject of rape by false promises of marriage. The subject matter is addressed within the context of the status quo of the offense, while some central considerations on behalf of the court in deciding the fate of an accused regard the article. The study is based on a close analysis of judgments of the Supreme Court and various High Courts that are either very recent or have been relied on or cited in judgments of the apex court. A critical tabulation of reasons for the various flaws of reasoning involved in some of the cases follows. Those may have, however, not solely formed the basis of decisions delivered by courts; yet they do tend to portray an unfair advantage extended to the accused. Such unpalatable observations brought down certain judgments that otherwise would have constituted real standards for usually similar cases. This part does not call into question the correctness regarding either conviction or acquittal of the judgments. Rather it is a simple extraction from some of the crucial problems exhibited in the judgments and a critical constructive critique. They mainly criticize, among other things, the inadequacy of consideration of the age and education of the prosecutrix, equating desire to consent, and unquestioningly adhering to Section 90 of the Indian Penal Code. However, looking into live-in relationships gradually gaining some acceptability and casual sex now being recognized in Indian society wrenches up the issue into quite another level.

Does sexual intercourse induced by a false promise of marriage constitute rape under the Bhartiya Nyaya Sanhita, 2023?

The research is analytical and descriptive. The research is based on both primary and secondary resources for determining the offense of false promises of marriage under BNS. Primary sources include the Bharatiya Nyay Sanhita and secondary sources include newspapers, reports and some other articles. The research has been done from reliable online sources.

DEFINITION OF RAPE 

Rape under Section 63 BNS 

The Bharati Nyaya Sanhita (BNS), 2023, defines rape in Section 63, and states that if a man commits rape if: 

 • Inserts his penis, or any other object, into the vagina, anus, or urethra. 

• Applies his mouth to the vagina, anus, or urethra of a woman or makes her do so with him or every other man or woman.

This act must be devoted underneath any of the subsequent circumstances:

1. Against her will: Without the girl's consent and against her needs.

2. Without her consent: Without acquiring specific consent through words, gestures, or any shape of verbal or non-verbal verbal exchange.

3. With her consent, obtained via: 

Putting her or any man or woman in whom she is interested by fear of loss of life or of harm.

Knowing that she is underneath the impact of any substance which has been given or administered to her without her understanding or against her will.

Knowing that she is of unsound thoughts.

4. With or without her consent, while she is under eighteen years of age.

5. When she is unable to communicate consent.

Consent is an unequivocal planned statement while the girl, howsoever expressed-whether or not by using phrases, signals, or any form of verbal or non-verbal communication her eagerness to take an interest inside the particular act of sexual sex that the unimportant reality that a lady is not put up physically warranty via such acts should be examined to infer that the assent of that attack;

Clarification 1-

That in this subsection, "vagina" might moreover incorporate "labia majora".

Clarification 2-

Consent implies an unequivocal deliberate understanding when the lady by words, motions or any frame of verbal or non-verbal communication communicates an eagerness to take an interest within the particular sexual act; Given that a lady who does not physically stand up to the act of entrance should not be the reason as it were of that truth, be respected as consenting to the sexual movement.

Special case

-Restorative methods or mediation might not constitute assault.

Exemption

-Assault does not incorporate sexual intercourse or sexual acts by a man with his spouse, who isn't less than eighteen a long time ancient

CONCEPT OF SEXUAL INTERCOURSE BY MAKING FALSE PROMISE OF MARRIAGE 

That is why it's important to know what the false promise of marriage stands for and its very essential characteristics. False promise of marriage means when a male obtains the consent of a female for sexual intercourse rightfully gained, with the intention of getting married on the condition that she uses her discretion. That promise turns out to be heavily acting with no intention of a real marriage. It is, to all intents and purposes, the same as rape, but cannot equate itself to that because there is consent involved. The major difference between rape and false promise to marry lies in the aspect of consent. In the rape case, there was no consent. Here, consent means free consent. In the case of a false promise to marry, there is consent, which is obtained by clever and ill-willed schemes.

The Bharati Nyaya Sanhita Section 69 sanctions the offense of false promise to marry and provides that "Whoever, by deceitful means or by making a promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her, sexual intercourse intended to be rape, shall be punished with any description of imprisonment for a term which may extend to ten years and shall also be liable to fine."

The doctrine of deceit means a false promise of employment or promotion to marry someone by suppressing their identity. 

It can therefore be seen that it provides a broader meaning to the term deceitful by encompassing the terms employment and promotion. Yet, we are here only dealing with the aspect of false promise to marry. Two infractions are established under Section 69 of the BNS: one through dishonest means, the other by false promise to marry. Such deceitful means include inducing a marriage after concealing his identity, false promises of employment, or promotions. This is relevant when a man purposely offers a promise to marry a woman intending to violate it so that he may obtain her consent and abuse her sexually. The maximum penalty for both crimes is ten years imprisonment.

Elements of false promise of marriage

Given a bare reading of section 69, six vital requirements of false promise to marry can be stated:

1.    Promise to Marry

2.    Unintended Promise to Marry

3.    Having Sexual Intercourse Based on That Promise

4.    It Does Not Constitute Rape

5.    The First and the Most Important

6.    Evidence

The promise to marry is the first or one of the most essential ingredients for an offence under Sec. 69. The promise must be made by the man to marry her. It is the first and foremost requirement that needs to be made to hold a man liable under sec. 69 of BNS. Absent a promise, an offense under Sec. 69 cannot be constituted. 

No intention of marrying

The second element of the offense under sec. 69 is that there should be no intention to marry. There is a difference between a breach of the promise of marriage and no intention to

marry. The onus is on the prosecution to prove that, at the time of giving such a promise, the accused did not intend to marry the woman and that it was nothing more than a pretext to gain the woman's consent.

Sexual intercourse is based on that promise

It is likewise essential to show that the sexual intercourse had been on account of that promise to marry. That is to say, consent, which has been obtained from the woman, ought to be based on the ground that the man has given the promise to marry her provided that she has sexual intercourse with him. That itself is to say that sexual intercourse should be in consideration thereof and not otherwise.

Does not constitute an offense of rape

The last element to be established for the offense under sec. 69, is the fact the act must not amount to the offense of rape. It implies that the act should not satisfy the elements of the offense of rape. The express consent of the woman should have been sought and obtained.

For example, if a man has promised to marry a woman, and she refuses to have sexual intercourse, but the man has sexual intercourse with her without her consent, that would be deemed very much right as rape and will not be one against sec.69 BNS. Rather, it will be dealt with rape.

POSITION OF FALSE PROMISE OF MARRIAGE BEFORE BNS

The BNS has not become effective yet but the offense of false promise to marriage is still in common parlance due to which courts have interpreted offense of rape under IPC as including the offence of false promise of marriage. Sec. 375 and Sec. 90 of IPC have been interpreted to include the offense of false promise of marriage. Sec. 375 provides for the offence of rape and Sec. 90 of IPC provides for consent. Since no law explicitly punishes false promises of marriage currently, Courts have interpreted such offense to come under the definition of rape. This has been done by interpreting consent under Sec. 375 as free consent defined under Sec. 90 of IPC. Courts have interpreted free consent to mean the consent that has been obtained without any fraudulent and deceitful means. Hence, the consent obtained by a false promise to marriage is deceitful in nature and does not constitute free consent leading the offense to be punishable under rape.

“State of Uttar Pradesh v. Naushad”, Section 90 was used. In this instance, the prosecutor—Shabana’s father, the informant—was the paternal uncle of the accused Naushad. The informant claimed that Naushad used to frequently visit his home and persuaded her daughter to have sex with him based on a pledge that he would one day wed her. The question raised by this case was whether Naushad could be found guilty of rape or not. According to Section 375 of the Indian Penal Code, the court found Naushad guilty of rape and sentenced him to life in jail.

In 2016, the National Crime Record Bureau recorded 10,068 cases of rape, of which 7655 cases were perpetrated by known persons on the pretext of marriage.

According to the Delhi Police Report, in 2018, almost one-fourth of the total cases of rape registered in the city pertained to sex under the false promise to marry

According to the reports from the National Crime Records Bureau, it flashed, "94 women are raped per day". One of the major reasons behind it is the false promise to marry. Specifically, a man manipulates a woman into engaging in sexual activities under a marriage pretext. And this is one number that continues to climb day after day.

The research has shown that the present generation of people are more concerned regarding their rights and laws in the country. Hence, it has also been found that the youth of our society agree to the fact that “SEXUAL INTERCOURSE ON THE FALSE PROMISE OF MARRIAGE CONSTITUTES RAPE.” The same study was designed for ages 18-45 so as to focus on stricter laws, thus ruling out the process of the jury in such cases. 

The issue of sexual intercourse induced on the grounds of the false promise of marriage is a very complex matter with deep social and legal implications. While the law has progressed to recognize the need for consent and to protect victims of sexual violence, numerous difficulties remain with respect to putting an end to these sex crimes.

A thorough understanding of the constitution, social aspects and the victim's perspective is quite important so that judiciousness can prevail and further such dastardly acts be averted.

It is suggested that courts must be more careful in determining the criminality of the offense under Sec. 69 of BNS. A careful and such interpretation is required for the law which is not very wide or narrow also so that there is no injustice to the victims.

In these cases, it is proven to the balance of probabilities that a false case has been filed, then a penalty should be imposed on the complainant. Punish him so as to control the number of free unfounded complaints of cases Some legislation must take into consideration the other side of the coin available so as to dissuade the other party's casting of illegal claims, e.g., cases where women force men into marriages by threatening the men on the possible false case of a false promise to marry. 

ANURAG SONI VS STATE OF CHHATTISGARH

In this instance, a female drug store understudy allowed the appealing party consent to have physical contact with her as it were after he made a commitment to wed her, indeed in spite of the fact that she was mindful that the appellant’s marriage had as of now been orchestrated with another lady, Priyanka Soni. As a result, the Court chose that it was sensible to draw the conclusion from the proof that the accused never intended to marry the prosecutrix which he had betrayed her by saying he would wed her, which is why she conquered having physical contact with him. Her assent will hence be respected as missing assent beneath Segment 90 since it was predicated on an untrue impression of the truths. The denounced was in this manner found blameworthy.

STATE OF UTTAR PRADESH VS NAUSHAD (2013)

Within the case of Naushad (State of Uttar Pradesh v. Naushad, 2013), the Litigant, was having an issue for the final two-year with the prosecutor, and she had accepted he would wed her. Based on this guarantee, the respondent Naushad swore to urge hitchhike to the casualty and regularly made physical relations with her. She was assaulted and got pregnant as a result. The litigant was found blameworthy of deceiving her beliefs by declining to wed her and sentenced to life in jail for assaulting her for having sex beneath the pretence of a fake marriage commitment. Concurring to the Court, the respondent moreover got her assent beneath Area 90 of the IPC beneath the incorrect conviction that he may wed her.

In our ordinary restricted society, marriage is loved as a sacrosanct institution, and females are conditioned to totally commit themselves to their spouses. Non-consensual sex inside a marriage isn't considered assault, indeed concurring to Indian controls. Assault casualties involve physical and mental enduring as a result of sexual violence, which incorporates an enduring effect on their lives. Assault is the wrongdoing that most troubles and mortifies the casualty, as well as the victim’s family.

Each citizen’s life is ensured by the state, hence some time recently sentencing somebody for wrongdoing, the realities of each case must be carefully decided. The proof and the encompassing circumstances must moreover be considered sometime recently making any choices or rendering a judgment. Since any botch or erroneous choice may result in shamefulness for the denounced, occasions including an untrue pledge to wed the accused’s reason must be carefully examined.

The addition of the arrangement of untrue guarantee of marriage beneath Sec. 69 of BNS has served to be an incredible law within the current times but it is to be utilized exceptionally cautiously because it may cause more hurt than the advantage it'll donate to society and Indian Legal framework.

1. Indian Penal Code, 1860, § 375 (Rape); § 90 (Consent), available at https://www.indiacode.nic.in.

2. Anjurag Soni v. State of Chhattisgarh, (2020) Chhattisgarh High Court Judgment No. 12, available at https://www.cghighcourt.nic.in.

3. State of Uttar Pradesh v. Naushad, (2013) 2 S.C.C. 443.

4. M.P. Jain, Indian Penal Code with Commentary (8th ed. 2020).

5. Gaurav Kumar v. State of Haryana, (2020) 12 S.C.C. 765.

6. National Crime Records Bureau, Crime in India (2016, 2020), Ministry of Home Affairs, Government of India, available at https://ncrb.gov.in.