Sexual intercourse without consent is rape and consent obtained through fraud or deception is no consent at all. Therefore, sexual intercourse for which a woman’s consent is obtained by deception should amount to rape. Scholars from around the world combine these two basic tenets of law to advocate for more stringent penal provisions for those guilty of rape by deception as they prefer to call it. The stigma surrounding topics pertaining to pre-marital sex in India makes matters tougher to deal with. Anurag Soni is a case with an uncomplicated factual nexus. The accused promised to marry the prosecutrix and had sexual intercourse with her. She initially objected to intercourse but consented on the assurance of marriage. It was revealed later that he already had plans to marry another girl, and this was known to his family as well. Prosecutrix was unaware of the accused’s plan to marry another girl, and this was known to his family as well. The apex court held that under section 90 of the Indian Penal Code consent under misconception of fact does not amount to valid consent. The accused had no intention to marry the prosecutrix right from the inception. He only had mala fides motive to satisfy his lust.
The fact that the accused had already planned to marry another girl makes it prima facie evident that there was no intention to marry the prosecutrix since the initial stage and just wanted to lure her in bed. While deciding such cases, the court has to take many factors into account. It is imperative to note that only if it is established that since the very beginning that the accused had no intention of marrying the prosecutrix can he be convicted of an offence because if he initially intended to marry the accused and later could not fulfill his promise due to circumstances beyond his control then the court cannot convict him. The law does not take into consideration a later date when the evidence does not suggest beyond reasonable doubt that the promise was not intended to be fulfilled from the beginning. Conviction of rape is the end result when the promise was made only to obtain sex. The consent obtained for such act is vitiated by fraud and is considered to be no consent at all. When the hope of marriage is used as a trap to lure a woman into bed for satisfaction of lust, the accused is not allowed to escape unpunished. The dishonesty in his intentions is often reflected by his behavior subsequent to him being confronted by the prosecutrix to fulfil his promise. Certain legitimate and pragmatic issues also contribute in ascertaining whether the intentions of the accused were malicious. The issue of compatability is of most significance. It is quite probable that in such cases that the promise was initially made with true intentions of fulfilling it but the accused in the course of his relationship realizes that the marriage may fail. The issue of compatibility is of most significance. It is quite probable in such cases that the promise was initially made with true intentions of fulfilling it but the accused in the course of his relationship realizes that the marriage may fail sooner or later due to incompatibility between the two. This concern was discussed very recently by the Telangana High Court in Safdar Abbas Zaidi v. State of Telangana. The court observed that a party may choose to withdraw from a relationship due to physical, emotional or psychological incompatibility. Under such circumstances, they cannot be compelled to marry just because they have had a sexual relationship
The age and education of a woman are held to be very relevant in deciding not only the culpability of the accused but also the voluntariness of the prosecutrix in such acts. A major and an educated woman is supposed to know the nature and the quality of the act and hence her participation in sexual intercourse is not taken to be completely obtained by fraud. She should know the consequences of having pre-marital sex. She is assumed to possess enough intelligence to ascertain the moral quality of the action. The law does not consider a major woman studying in college or pursuing her profession vulnerable to rape by false promise of marriage. Courts across India have also acknowledged that a promiscuous woman who regularly engages in sexual intercourse with other men since she seeks equal pleasure like the accused and plays her part in the act.
In conclusion, determining whether or not consent is vitiated in cases in which a woman gives consent on the pretext of marriage depends on sociocultural factors, statutory interpretation and other demographic factors.
Contributed By Ahaana Kashyap
