Professional Documents
Culture Documents
J 2022 SCC OnLine Blog OpEd 29 Mohammadzaidhusain099 Gmailcom 20220921 184331 1 7
J 2022 SCC OnLine Blog OpEd 29 Mohammadzaidhusain099 Gmailcom 20220921 184331 1 7
false promise to secure the consent. The Court has noted that the phrase “against the
will” seemed “to connote that the offending act was done despite resistance and
opposition of the woman”.11 The Court has placed reliance on Section 90, and held:
19. The factors set out in the first part of Section 90 are from the point of view of
the victim. The second part of Section 90 enacts the corresponding provision from
the point of view of the accused. It envisages that the accused too has knowledge
or has reason to believe that the consent was given by the victim in consequence of
fear of injury or misconception of fact. Thus, the second part lays emphasis on the
knowledge or reasonable belief of the person who obtains the tainted consent. The
requirement of both the parts should be cumulatively satisfied. In other words, the
court has to see whether the person given the consent had given it under fear of
injury or misconception of fact and the court should also be satisfied … of the fact or
should have reason to think that but for the fear or misconception, the consent
would not have been given. This is the scheme of Section 90 which is couched in
negative terminology.12
Neither in Uday13 nor in Deelip Singh14 was the consent obtained forcibly. Contrast
this with Yedla Srinivasa Rao v. State of A.P.15 In that case, the accused had
intercourse with the victim forcibly. Then, after impregnating, he pacified her by
promising marriage. The conviction was upheld, as the Court held that the intention
was not honest from the beginning; he only promised to marry the prosecutrix when
she became pregnant. The facts of this case are different to the extent that there was
no consent for sexual intercourse; therefore, the circumstance mentioned as “firstly” -
against her will-stood satisfied. Coercive element established, the Court ought not
have even enquired into the existence of any promise or assurance to marry. It is non
sequitur. Respectfully, it is submitted that Court has erred in holding:
17. In the present case, in view of the facts as mentioned above we are satisfied
that the consent which had been obtained by the accused was not a voluntary one
which was given by her under misconception of fact that the accused would marry
her but this is not a consent in law….16
In Deepak Gulati v. State of Haryana17 , the woman consented to sexual intercourse
on the understanding that the accused would marry her, though “she was conscious of
the fact that her marriage may not take place owing to various considerations,
including the caste factor”. On his conviction, the accused had served over three years
of his sentence before the Supreme Court acquitted him. In that context, the Court
has held:
21. Consent may be express or implied, coerced or misguided, obtained willingly
or through deceit. Consent is an act of reason, accompanied by deliberation, the
mind weighing, as in a balance, the good and evil on each side. There is a clear
distinction between rape and consensual sex and in a case like this, the court must
very carefully examine whether the accused had actually wanted to marry the
victim, or had mala fide motives, and had made a false promise to this effect only
to satisfy his lust, as the latter falls within the ambit of cheating or deception. There
is a distinction between the mere breach of a promise, and not fulfilling a false
promise. Thus, the court must examine whether there was made, at an early stage
a false promise of marriage by the accused; and whether the consent involved was
given after wholly understating the nature and consequences of sexual indulgence.
There may be a case where the prosecutrix agrees to have sexual intercourse on
account of her love and passion for the accused, or where an accused on account of
circumstances which he could not have foreseen, or which were beyond his control,
was unable to marry her, despite having every intention to do so. Such cases must
be treated differently. An accused can be convicted for rape only if the court
reaches a conclusion that the intention of the accused was mala fide, and that he
SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.
Page 3 Wednesday, September 21, 2022
Printed For: Mohammad Husain, SCC Online MyLOFT Remote Access
SCC Online Web Edition: http://www.scconline.com
© 2022 EBC Publishing Pvt.Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
in the absence of any specific legislative mandate - the basis for such free and
unequivocal consent, such as a promise to marry, is irrelevant. The intent of the
legislature is clear from the second explanation. With utmost respect, when the
provision categorically enumerates situations in which consent obtained under either
threat or coercion as being no consent, and the section having categorically left out
conditional consent, it cannot be said that consent obtained on a promise to marry is
not free consent. What is germane to Section 375 is whether there is consent by free
will for sexual intercourse, and such consent is not obtained from a girl of less than 18
years of age or such consent is not obtained by threat, coercion or intoxication. When
none of these factors are directly attracted, and a consent is given on “promise to
marry”, it can hardly be said that such consent is not consent by free will.
For example, in R. v. Flattery36 , a nineteen-year-old girl consulted the accused, a
doctor, for treatment for an illness. And the accused, on the pretext of giving her
surgical treatment, had carnal intercourse. The victim having submitted herself on the
genuine belief that she was being treated, the accused was held guilty of rape.
Similarly, in R. v. Williams37 , when the accused, who was engaged by the victim to
give her lessons in singing, had sexual intercourse with the victim on the pretext that
he had to perform an operation on her to produce her voice properly. Thus, the victim
having submitted herself on this premise but without any intention of having sexual
intercourse, the King's Bench upheld the conviction of rape. In Williams38 , the King's
Bench Court placed reliance on the opinion of Branson, J. in Reg. v. Dicken39 thus:
…Branson, J. stated the law in the course of the summing up in the present case
in accurate terms. He said:“The law has laid it down that where a girl's consent is
procured by the means which the girl says this prisoner adopted, that is to say,
where she is persuaded that what is being done to her is not the ordinary act of
sexual intercourse but is some medical or surgical operation in order to give her
relief from some disability from which she is suffering, then that is rape although
the actual thing that was done was done with her consent, because she never
consented to the act of sexual intercourse. She was persuaded to consent to what
he did because she thought it was a surgical operation.40
In other words, only when the consent is given for an act, which the consent giver
is not knowing to be a sexual act, can the offence of rape be attracted. Such a consent
would fall within the ambit of “misconception of fact” even under Section 90 IPC. It is
settled law that a criminal statute must be interpreted in a strict manner, and, it is
submitted, the law laid down by the Supreme Court regarding “the consent for sexual
intercourse on a false promise to marry” as attracting the offence of rape would
amount to reading words into the statute - words that do not exist.
Recently, two High Courts, while taking a completely contrary stand on the issue,
have expressed a need for the legislature to clarify the issue. The Allahabad High
Court, in Harshvardhan Yadav v. State of U.P.41 , has noted that till the legislature
provides for “a clear and specific legal framework where the accused obtained consent
for sexual intercourse on the false promise of marriage”, the Court should continue to
give protection “to such women who have suffered on account of false promise of
marriage”.42 Conversely, the Orissa High Court in G. Achyut Kumar v. State of
Odisha43 , while hearing an application for bail, has opined that “the automatic
extension of provision of Section 90 IPC to determine the effect of a consent under
Section 375 deserves a serious relook. The law holding that false promise to marriage
amounts to rape appears to be erroneous”.44
It is submitted that intertwining consent for intercourse with marriage may not
reflect the change in societal attitude. In the present day and age, the law recognises
a “relationship in the nature of marriage”45 — colloquially called a live-in relationship.
It was once frowned upon as morally decadent. O tempora, o mores! So, the
SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.
Page 6 Wednesday, September 21, 2022
Printed For: Mohammad Husain, SCC Online MyLOFT Remote Access
SCC Online Web Edition: http://www.scconline.com
© 2022 EBC Publishing Pvt.Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
interpretation given by the Supreme Court, with marching times and changing social
mores, requires a reconsideration. From Uday46 to Sonu47 , the law on this aspect has
stood like a rock - fossilised, so to say. In an appropriate case, the Supreme Court
must revisit the purport of “misconception of fact” in Section 90 for the offence of
rape.
———
* Advocate on Record, Supreme Court of India.
**
Advocate on Record, Supreme Court of India. Author can be reached at amitpaioffice@gmail.com.
1 Penal Code, 1860.
2 This would not apply to “consent” by a girl less than 18 years of age.
3
Penal Code, 1860, Ss. 375-377.
4 Penal Code, S. 375.
1 (2003) 4 SCC 46.
6
(2003) 4 SCC 46, 56-57.
7 Penal Code, 1860, S. 90.
8 Uday v. State of Karnataka, (2003) 4 SCC 46, 58.
9
Uday v. State of Karnataka, (2003) 4 SCC 46, 59, para 26.
10
(2005) 1 SCC 88.
11 Deelip Singh v. State of Bihar, (2005) 1 SCC 88, 97, para 12.
12
Deelip Singh v. State of Bihar, (2005) 1 SCC 88, 99.
13
(2003) 4 SCC 46.
14 (2005) 1 SCC 88.
15 (2006) 11 SCC 615.
16
Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615, 624.
17 (2013) 7 SCC 675.
18 Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, 682.
19
(2013) 9 SCC 113, 118.
20
(2000) 7 SCC 224.
21 (2013) 12 SCC 710.
22
(2006) 11 SCC 615.
23 (2013) 16 SCC 651, 658.
24 (2019) 9 SCC 608, 620.
25
(2019) 13 SCC 1.
26 (2019) 18 SCC 191, 202.
27
Penal Code, 1860, S. 376.
28
(2020) 10 SCC 108.
29 (2003) 4 SCC 46.
30 Maheshwar Tigga v. State of Jharkhand, (2020) 10 SCC 108, 117, para 20.
SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.
Page 7 Wednesday, September 21, 2022
Printed For: Mohammad Husain, SCC Online MyLOFT Remote Access
SCC Online Web Edition: http://www.scconline.com
© 2022 EBC Publishing Pvt.Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
31
2021 SCC OnLine SC 181.
32 Sonu v. State of U.P., 2021 SCC OnLine SC 181.
33
Penal Code, 1860, Expln. 2 to S. 375.
34
(2013) 9 SCC 113.
35 Kaini Rajan v. State of Kerala, (2013) 9 SCC 113, 118.
36 [L.R.] 2 Q.B.D. 410.
37
[1923] 1 K.B. 340.
38 [1923] 1 K.B. 340.
39 (1877) 14 Cox 8, C.C.
40
See R. v. Williams, [1923] 1 K.B. 340, 347.
41 2021 SCC OnLine All 500.
42 Harshvardhan Yadav v. State of U.P., 2021 SCC OnLine All 500, para 30.
43
2020 SCC OnLine Ori 417.
44 G. Achyut Kumar v. State of Odisha, 2020 SCC OnLine Ori 417, para 15.
45 See, Protection of Women from Domestic Violence Act, 2005.
46
(2003) 4 SCC 46.
47 2021 SCC OnLine SC 181.
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.