Allegation of rape in false promise of marriage

NADI (not real name) filed a case accusing Sagor (not real name) of luring her into an affair with false promises of marriage.  She also brought allegation of rape and cheating against the accused Sagor. In our country and many other parts of the world such kind of incidents are happening every now and then.  Only few victims dared to get redressed by Law.  

In order to address this type of Problem few keywords deserve to be attended which are: deceit and misconception of fact, love-desire, consent, rape and cheating. In Uday v State of Karnataka, (2003) 4 SCC 46 the Supreme Court of India held that 'the consent given by prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the code (Penal code). We are inclined to agree with the view'.

In Bangladesh in the case of Lukus Miah v State 43 DLR 230 The Apex Court held that 'the victim of alleged cohabitation knew that there was no marriage between her and the accused and that the latter only compromised to marry her on some future date- such allegation made in First Information Report did not come within the mischief of section 493 of Penal Code nor can be considered as rape'.   

In one of the Indian case, Karthi @ Karthick v State Rep. by Inspector of Police, Tamil Nadu on 1 July, 2013, the Apex Court referred the decision given in Deelip Singh@Dilip Kumar v State Of Bihar on 3 November, 2004, saying as follows: 'a representation deliberately made by the accused  without having intended to marry her will vitiate the consent. If the facts of a given case reveal that at the very inception of making of the promise to marry, the accused did not really entertain the intention to marry her and the promise  was a mere hoax, consent ostensibly given by the victim will not exculpate the accused from the ambit of Section 375 penal code'.

So here we see Apex Court of India not only lessened the domain of the plea of 'consent on the part of the prosecutrix' in a very restrictive way but also open a gateway to try the accused on allegation of cheating also as it says '...the act  of having sexual intercourse with such a woman would amount to cheating if the act of the woman in letting such a man have sexual intercourse with her causes or is likely to cause damage of harm to the person of such a woman, her mind or reputation'.

In the final analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent. However, the court in each case, may judge the evidence before it and the surrounding circumstances prior to reaching a conclusion. As each case has its own peculiar facts and the question whether the consent was voluntary or was given under a misconception of fact should determine accordingly.

The writer is student of LLM, University of Dhaka.