Thursday, 21 April 2011

‘Sexual exploitation’ on promise of marriage

‘Sexual exploitation’ on promise of marriage
Most of the rape cases are meticulously well-planned to satisfy uncontrolled sexual lust and to realize sensuous celluloid images and fantasies with a sole motive to dominate over women. In fact before committing actual rape or ‘date rape’, rehearsal takes place many times in the intoxicated brain of the rapist. Invariably the victim is blamed, insulted and humiliated even by her own family members for slurring the so called ‘family honour and reputation’.
Having sex with a girl on the false promise of marriage and later refusing to tie the marriage knot may amount to commission of rape, particularly when the boy from very inception had no intention of marrying the girl. We may term it as ‘sexual exploitation’ on promise of marriage. Most often boys develop physical relations on false promise of marriage and continue till she become pregnant. Some time it is very difficult to abort and the matter come to the knowledge of family and neighbours. Mostly at that later stage cases are registered against the persons. Indian Courts have confronted several times with the question “whether Sexual intercourse with any girl on a false ‘promise of marriage’ is consent or not? If not Rape, is it ‘cheating’ or not?
If fully grown up girl consents to sex on a promise of marriage until she becomes pregnant is promiscuity
Calcutta High Court in Jayanti Rani Panda v. State of West Bengal & Anr., wherein the accused was a teacher of the local village school and used to visit the residence of the prosecutrix. One day during the absence of the parents of the prosecutrix he expressed his love for her and his desire to marry her. The prosecutrix was also willing and the accused promised to marry her once he obtained the consent of his parents. Acting on such assurance the prosecutrix started cohabiting with the accused and this continued for several months during which period the accused spent several nights with her. Eventually when she conceived and insisted that the marriage should be performed as quickly as possible, the accused suggested an abortion and agreed to marry her later. Since the proposal was not acceptable to the prosecutrix, the accused disowned the promise and stopped visiting her house. It was held that “if a fully grown up girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact and Section 90 IPC cannot be invoked unless the court can be assured that from the inception accused never intended to marry her.” (1984) Cri.L.J.1535, also see Hari Majhi vs. The State : 1990 Crl. L.J. 650 and Abhoy Pradhan vs. State of West Bengal : 1999 Crl. L.J. 3534.)

It amounts to cheating not rape
In another case the petitioner had sexual intercourse with the victim girl several times on false promise of marriage and she became pregnant. She informed her parents, and got Panchyat held on 30.7.1984 where again the petitioner gave false assurance that he would marry the girl. But when her parents requested him to marry her, he and the other accused persons abused girl and her parents and assaulted them with fists and slaps and chased and drove them inside their own house.
Relying on Jayanti Rani Panda case Hon’ble Justice Ram Nandan Prasad, of Patna High Court held that “though on the facts of the case, an offence of rape is not made out, it is obvious that by holding out the false promise of marriage the petitioner fraudulently induced the complainant to have sexual intercourse with him and but for this false promise she would not have consented to have sexual intercourse with him. The act of the petitioner, therefore, amounts to cheating as defined in Section 415, I.P.C. and as such prima facie amounts to an offence under Section 417, I.P.C. Besides this act of cheating, the petitioner and other accused are also alleged to have indulged in assaulting the intimidating the complainant and her parents which prima facie would give rise to an offences under Sections 323, and 506, I.P.C.” (Mir Wali Mohammad @ Kalu vs The State Of Bihar (1991 (1) BLJR 247 Order dated 2/7/1990)

‘intentional inducement’ giving ‘false of promise of marriage’ is cheating
Before Hon’ble Justice B.B. Vagyani of Bombay High Court the short point that arises for consideration is whether the offence of cheating as defined under section 415 of I.P.C. embraces cases in which no transfer of property is occasioned by the deception.
In this case the prosecutrix is a divorced woman. After divorce, the prosecutrix started residing with her mother, where the accused came in contact with the prosecutrix. The casual acquaintance ultimately culminated into a love affair and after giving promise of marriage, he sexually exploited the prosecutrix on number of occasions. The nature brought this ‘indecent affair’ on the surface. When the prosecutrix became pregnant she asked the accused to fulfil his promise of marriage, but he flately refused to marry prosecutrix. Thereafter, the prosecutrix lodged a criminal complaint against the petitioner-accused on 30th April 1992 at Police Station, Adavat. FIR was registered under section 376 IPC and the Additional Sessions Judge, Amalner, Dist. Jalgaon, framed additional charge under section 417 of I.P.C. against the petitioner-accused.
While deciding quashing petition Hon’ble Justice Vagyani strongly relied on Marah Chandra Paul v. State of Tripura, (1997 C.R.I. 715) and held that the prosecutrix was intentionally induced to submit to sexual intercourse on false promise of marriage. The overt act on the part of the petitioner-accused has certainly caused damage or harm in body, mind and reputation of the person deceived. The indulgence of the petitioner-accused in sex with prosecutrix by means of ‘intentional inducement’ after giving ‘false of promise of marriage’ squarely falls within the ‘mischief’ of the definition of cheating as defined under section 415 of I.P.C. which is punishable under section 417 of I.P.C.” (Atmaram Mahadu More Vs State of Maharashtra (1998 (5) Bom CR 201 Order dated 13/11/1997)
Sufficient intelligence, significance and moral quality
Hon’ble Supreme Court in Uday Vs State of Karnataka on 19.2.2003 held that no straitjacket formula can be laid down for determining whether consent given by the prosecutrix was voluntary or under a misconception of fact, but following factors stand out;
a.   where a girl was of 19 years of age and had sufficient intelligence to understand the significance and moral quality of the act she was consenting to;
b.   she was conscious of the fact that her marriage was difficult on account of caste considerations;
c.    it was difficult to impute to the appellant knowledge the prosecutrix had consented in consequence of a misconception of fact arising from his promise, and
d.   there was no evidence to prove conclusively that the appellant never intended to marry the prosecutrix.
Case of emotions and passion in weak moments
In fact Hon’ble Justice N. Santosh Hegde & B.P. Singh serious doubted that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew that her marriage with the appellant was difficult on account of caste considerations and was bound to meet with stiff opposition from members of both families. She was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. However the appellant had reason to believe that the consent is given due to deep love for each other as they met often, she permitted him liberties, which is permitted only to a person with whom one is in deep love. She stealthily went out with the appellant to a lonely place at 12 O'clock in the night. It usually happens when two young persons are madly in love and promise loses all significance, particularly when they are over come with emotions and passion in weak moments; succumb to the temptation of having sexual relationship. The girl willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. [2003 (4) SCC 46]
Genuine intention under family pressure
Hon’ble Justice P. Venkatarama Reddi & P.P. Naolekar of Supreme Court on 3.11.2004 observed that “we have no doubt that the accused did hold out the promise to marry her and that was the predominant reason for the victim girl to agree to the sexual intimacy with him. Girl was also too keen to marry him as she said so specifically. But we find no evidence which gives rise to an inference beyond reasonable doubt that the accused had no intention to marry her at all from the inception and that the promise he made was false to his knowledge. On the other hand, the statement of  girl that 'later on', the accused became ready to marry her but his father and others took him away from the village would indicate that the accused might have been prompted by a genuine intention to marry which did not materialize on account of the pressure exerted by his family elders. It seems to be a case of breach of promise to marry rather than a case of false promise to marry. [Deelip Singh Alias Dilip Kumar v. State of Bihar,2005 (1) SCC 88]
Pay Rs.50,000/- for ‘reprehensible conduct’
Hon’ble judges however observed that the appellant, no doubt extricates himself from the clutches of the penal law by getting the ‘benefit of doubt’ on charge leveled against him. But, we cannot ignore the ‘reprehensible conduct’ of the appellant, who by promising to marry the victim woman, persuaded her to have sexual relations and caused pregnancy. The act of the accused left behind her a trail of misery, ignominy and trauma. He was held liable for damages and the appellant happily agreed to pay Rs.50,000 by way of monetary compensation irrespective of acquittal.
No intention to marry her right from the beginning
Hon’ble Justice A.K. Mathur & Altamas Kabir of Supreme Court on 29/09/2006 rightly observed that “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. This is more evident from the testimony of the victim girl as well as witness who was functioning as Panchayat where the accused admitted that he had committed sexual intercourse and promised to marry her but he absconded despite the promise made before the Panchayat. That shows that the accused had no intention to marry her right from the beginning and committed sexual intercourse totally under the misconception of fact by prosecutrix that he would marry her. Therefore, we are satisfied that the conviction and sentence awarded to the appellant is correct and no case is made out for our interference. The appeals are dismissed”     (Yedla Srinivasa Rao Vs State of A.P., Appeal (crl.) 1369 of 2004,)
In the instant case the appellant Yedla Srinivasa Rao was convicted and sentenced to undergo seven years imprisonment on a charge of raping a 16-year-old girl. He promised to marry her but did not do so. After the girl became pregnant, a case of `rape' was registered against him. The trial court acquitted the accused holding that since the girl consented to the intercourse, it would not amount to rape. On appeal by the State, the Andhra Pradesh High Court reversed the order and awarded him seven-year imprisonment.
Hon’ble Supreme Court said in such cases “factors like the age of the girl, her education and her status in the society and likewise the social status of the boy’ are necessary considerations. If prosecutrix was also equally keen, then in that case the offence is condoned. But in case a poor girl placed in a peculiar circumstance where her father has died and she does not understand what the consequences may result for indulging into such acts and when the accused promised to marry but he never intended to marry right from the beginning then the consent of the girl is of no consequence. A consent obtained by misconception while playing a fraud is not consent.”
Girl of ‘tender age’ is more vulnerable
It was analyzed that in Jayanti Rani Panda the porsecutrix was aged 21-22 years old whereas in Yedla Srinivasa Rao case the age of the girl was very tender between 15-16 years. It is always matter of evidence whether the consent was obtained willingly or consent has been obtained by holding a false promise which the accused never intended to fulfill. If the accused persuaded a girl of tender age that he would marry her then such consent was not obtained voluntarily but under a misconception of fact and the accused right from the beginning never intended to fulfill the promise. Such fraudulent consent cannot be said to be consent so as to condone the offence of the accused.
It’s victimization and exploitation of innocent girls
While rejecting the Bail Application Hon'ble Justice V.K. Jain of Delhi High Court on 1st February, 2010 where the boy raped the girl after completing marriage formalities like ROKA observed “if I take the view that sexual intercourse with a girl, in the facts and circumstances such as in the present case, does not amount to rape, it will result in unscrupulous and mischievous persons, taking undue advantage of innocent girls by promising marriage with them, without having any intention to do so, re-assuring the girl and her family by making the two families meet each other and formalize the matter by ceremonies, such as an engagement, persuading the girl to have sexual intercourse with him by making her believe that he was definitely going to marry her and then abandoning her, after robbing her of what is most dear to her…… A view, which is likely to result in victimization or exploitation of innocent girls, needs to be avoided and the Courts need to take a view, which would discourage unscrupulous persons from taking advantage of innocent girls by alluring them and having sexual intercourse with them, on a false promise of marriage.”
Justice Jain condemning such criminal behavior wrote “taking a view that persuading a girl to have physical relations on the false promise of marriage, despite having no intention to marry, will in no case constitute rape, will amount to putting premium on a conduct which is not only highly reprehensible and abhorable but also criminal in nature. If this is allowed to happen, it will enable immoral and dishonest persons, including those who come to this country for such very purposes, to exploit girls belonging to weaker sections and lower strata of society by alluring them with false promise of marriage pressuring them to have physical relations with them by making them believe that they are going to marry them and that there was nothing wrong in having such relations with a person who is very soon going to be her husband and later on turn; their back at her, in a comfortable belief that the law being on their side, they can easily get away with their misdeeds. The courts cannot and should not give such a license to those who keep on looking for opportunities to exploit the sentiments and vulnerability of Indian girls who perceive marriage as a pious bonding; and not as a union of two bodies. Allowing such persons to go scot free after exploiting poor and helpless girls in this manner could never have been the intention of the legislature which considered rape to be such a heinous as to attract imprisonment up to life.” (Nikhil Parasar Vs State)
Rape…..rape….No rape!
But even after Supreme Court verdict, in July 2010 Justice Ambadas Joshi of Bombay High Court while acquitting a man, 42 years in a rape case, observed that sexual relationship after promising marriage and reneging on it does not amount to rape. Rathod, then 30 years old, was serving at a forest office near the victim's house. He developed physical relations with her and promised marriage. She informed her parents when she became pregnant and Rathod was arrested following a complaint lodged by her parents. Charged with repeatedly having sexual relations with an "underage" girl the sessions court sentenced him to 10-year rigorous imprisonment.

Legal eagles are puzzled
Legal opinions and verdicts on this particular aspect are vertically divided and confusing between the interpretation of ‘consent’ and ‘misconception of fact’ because law is not crystal clear and decision depends on ‘Facts and circumstances’ of each case. Consensus of judicial opinion is in favour of the view that the consent given by the victim to sexual intercourse with a person with whom she is deeply in love on  promise that he would marry her on a later date, cannot be said to be given under a misconception of fact.    Some courts are of the view that the so called consent under a false promise to marriage is no consent. Accordingly, the consent obtained in establishing physical relationship like husband and wife under false promise to marry the latter is no consent as per law.
In such cases the most difficult task is to prove that the accused had no intention to marry with the girl right from the beginning. He may say that I wanted to marry but my parents….cast….religion…’khap’ etc did not allowed. This legal jugglery of justice will continue, till the laws against crime against women are not amended by the legislatures.  

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