By: Manas Agarwal and Ritu Bhatiya
The absence of consent is a sine qua non element of the offence of rape involving people above the age of 18. This paper focuses on one such category of consent, which is consent based on the promise of marriage. Two provisions of the Indian Penal Code (‘IPC’) are significant for consent in cases of rape. The first is Section 90 and the second is Explanation 2 to Section 375. Through a harmonious interpretation of these two sections, judgements have created a distinction between breach of promise to marry and the false promise of marriage. One such judgement is that of Pramod SuryabhanPawar v. State of Maharashtra (‘Pramod’). Though this case also delved into the applicability of Section 482 of the Code of Criminal Procedure (‘CrPC’), we will only critically analyse the judgement for the verdict on consent. To analyse the judgement lucidly, we have divided it into two parts. Firstly, we will normatively argue that the distinction between breach of promise and false promise is erroneous. Secondly, we will argue that Pramod misapplies Section 90. Hence, Pramod is erroneous even if Section 90 is applicable. With the help of these two parts, our central argument is that ‘Consent should be interpreted in a manner to protect the victim as opposed to saving the accused’.
[A] – Distinction between breach of promise and false promise is erroneous.
The distinction is erroneous because of two reasons. Firstly, Section 90 should be inapplicable in cases of rape. This is because “a basic rule of interpretation of law is that if a term is defined in a particular section, then only that definition is to be used for the purposes of the section”. Hence, as ‘consent’ is defined in Section 375 of IPC, then only that should be used to interpret consent. Furthermore, according to Mrinal Satish, Section 375 read with Section 376 can be treated as a code in itself. Thus, Section 90 should be inapplicable in cases of rape. Once this has been established, the distinction abovementioned will fall. This is because the distinction is based on the mens rea element mentioned in Section 90. The relevant part of Section 90 states “…if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception…” Hence, Section 90 requires the element of mens rea as both knowledge and reason to believe are facets of mens rea. In cases of breach of promise, this mens rea requirement will not get satisfied as at the time of doing the act the accused neither knew nor had reason to believe that there is any misconception. Hence, in these cases, the courts have held that consent was not vitiated. Furthermore, if only Section 375 is applicable, the distinction fails as Section 375 is a strict liability offense.
Secondly, even if Section 90 applies to some instances of rape, the applicability would not extend to creating the distinction abovementioned. A correct method of harmonious construction will prove this. Section 90 states what does not amount to consent whereas Section 375 states what amounts to consent. First, let us take the simple example of a false promise to marry. In false promise, mens rea as required by Section 90 is present, and thus false promise would not amount to consent even from the standards of Section 90. Furthermore, one would reach the same conclusion by using Section 375. Section 375 uses the words “unequivocal voluntary agreement”. So, if the promise was based on false grounds, it would not be unequivocal. Second, let us talk about the breach of promise to marry. Due to good faith and honest belief at the time of the making of the promise, the mens rea requirement of Section 90 is unfulfilled in breach of promise. However, Section 90 is couched in negative language, that is, if there is a misconception of fact, then that would not amount to consent. But that does not necessarily mean that the reverse is true. This means that if Section 90 is not attracted, it should not be presumed that there is consent. We would have conceded this argument if there was no provision in IPC, which defined consent affirmatively. However, as Section 375 does define consent affirmatively, the reverse of Section 90 should not hold true. The effect of this is that even a breach of promise would vitiate consent. This is because consent in Section 375 incorporates the idea of conditional consent. So, if the consent is contingent on marriage and the marriage does not take place, then the consent stands vitiated irrespective of mens rea. Hence, in a false promise to marry one would reach the same conclusion on consent by using either Section 90 or Section 375. In breach of promise to marry, the reverse of Section 90 should not hold as Section 375 exists. Thus, Section 90 is redundant for cases of promise to marry.
There may arise certain extraordinary situations where it becomes imperative to gauze mens rea. So, such situations should be given content based on standards at the time of adjudication as opposed to giving content at the time of promulgation in form of rules so that the law does not become over inclusive.
Lastly, even if part A of this paper is entirely flawed, then also the judgement in Pramod is untenable. This is because Pramod misapplied Section 90.
[B] (Mis) Applying Section 90
Assuming Section 90 should be applicable, misapplication of Section 90 in Pramod can be proved in two ways. Firstly, relying on several cases, Pramod held that the promise should have been given in bad faith and there should have been no intention to adhere to it at the time of making the promise (¶18 of SCC copy). Though this is imperative for maintaining a distinction between false promise and breach of promise, yet this is not applicable here. Even if I concede that in 2008 (at the time of making the promise) (¶2.1 of SCC copy) or 2009(at the time of the establishment of corporeal relationships) (¶2.2 of SCC copy) the accused had an honest belief, yet this is not enough to absolve him from liability. It was evident from the FIR that the accused was employing dilatory tactics throughout the period of sexual intercourse (¶2 of SCC copy). Both in the year 2013 (¶2.4 of SCC copy) and the year 2014 (¶2.5 of SCC copy), the accused raised concerns for marriage on the ground of caste. Furthermore, in 2015, the accused sent extremely derogatory remarks to the victim on her caste (¶2.6 of SCC copy). However, in 2015 he still promised to marry the victim (¶2.7 of SCC copy). So, he made a promise to marry both in 2008 and 2015. After both these promises, there was sexual intercourse. Hence, there is different cycle in 2008, which begins with promise to marry and ends with sexual intercourse and then this cycle repeats itself in 2015. Thus, the promise made in 2015 should be treated as an independent promise from that made in 2008. Furthermore, the abovementioned facts at least prima facieprove that the accused had mens rea to marry the victim and it was a false promise.
Secondly, one might argue that if the accused had professed concerns about marriage, then there was no misconception of fact. In other words, the false promise must have immediate relevance for misconception to occur. This was also iterated in Promod because it relied on the Deepak Gulati case. In Deepak, it was held that the victim consented to sexual intercourse on account of deep love for the accused and not solely on misrepresentation. (¶21, 24 of SCC copy) However, this is a flawed argument. The promise of marriage must have an immediate relevance is not equivalent to the promise of marriage being the sole reason. Consent in Section 375 uses the word “unequivocal voluntary agreement”. Hence, even if a promise to marry is one of the considerations for consent (that is, firstly of immediate relevance and secondly, it should become unequivocal only when all the considerations, based on which the consent was given, gets satisfied) then also in this case, it would not amount to rape under Section 375 as there is equivocal voluntary agreement when a promise to marriage is made.”
To conclude, we have argued two points in this paper. Firstly, there should be no distinction between a false promise of marriage and a breach of promise. This is because Section 90, through which the distinction is created, is either applicable or redundant. Secondly, even if Section 90 is applicable, it was misapplied in Pramod. This is because there existed an independent promise to marry from that of the original promise and the consent given was equivocal. Through these two points, we submit, ‘Consent should be interpreted in a manner to protect the victim as opposed to saving the accused’.
The standard for appeals made under Section 482 of CrPC is that “on the face of it”, the facts of the FIR must constitute a cognizable offence.
[The authors are currently studying in the 3rd year of B.A. LLB. (Hons) program at National Law School of India University, Bangalore]