When does consent become a non-consent? It is a difficult question to answer, especially if it involves a promise to marry, which is subsequently broken. The Supreme Court and two high courts have dealt with this question in divergent ways in the last ten months, writes NINAD PARIKH.

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THE Nagpur bench of the Bombay High Court has ruled that misguided consent for sex can’t be construed as free consent.
A first information report (FIR) for the offences punishable by Sections 376 (punishment for rape) and 417 (punishment for cheating) of the Indian Penal Code (IPC) was lodged by his former fiancée against the applicant in this case after he had sexual intercourse with her twice under the pretext that they would be married soon, but then started avoiding her before calling off their marriage on false bases.
The couple had gotten engaged in February 2021, and their marriage was planned for April that year. However, it was first postponed as a result of the second wave of the COVID pandemic, and then again due to the woman contracting COVID19.
The applicant had thrown a party at a resort in June last year, where, under the influence of alcohol, the sexual encounters with his then fiancée took place.
The applicant applied to the high court to quash the FIR against him, alleging that the complaint was false, and he called off the marriage due to legitimate compatibility issues with his former fiancée.

“To establish whether the consent was vitiated by a misconception of fact arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.”: Supreme Court

A division bench of the high court comprising Justices Atul Chandurkar and Govinda Sanap held that consent given under the misconception of fact could not be said to be free consent. It observed:
“This is not a simple case of cheating. The cheating is coupled with the serious offence of rape. It can be gathered on the basis of the material that the applicant/accused had hidden intention not to marry with the applicant once his sexual lust is satisfied. … Looking at the facts of the case from any angle, it would show that the case in question is not a fit case to quash the [FIR]”.
Also read: Make women’s voices central to false promise to marry cases

Similar facts, but SC ruled differently

In a similar case from March last year, the Supreme Court had, contrastingly, quashed the FIR filed against the accused-appellant under section 376 of the IPC. The division bench of Justices D.Y. Chandrachud and M.R. Shah referred to the established legal position for governing such cases, as enunciated by the Supreme Court in its judgment in Pramod Suryabhan Pawar vs. The State of Maharashtra (2019) that:
“[T]he consent of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the consent was vitiated by a misconception of fact arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.” 
In this particular case, the FIR was registered against the man by his girlfriend in March 2018 at Mathura in Uttar Pradesh, alleging that he had refused to marry her after they had a relationship of a year and a half. The woman accused him of misguiding her and establishing a sexual relationship with her under the false promise of marriage.
Subsequently the accused approached the Allahabad High Court for getting the FIR quashed. He pleaded that his promise to marry her was genuine, but he could not do so due to the opposition from his parents. The high court declined to quash the FIR in September 2019.
The accused appealed against the high court order before the Supreme Court.
The Supreme Court found substance in the accused-appellant’s contention that his relationship with the complainant was a consensual one, and they were together for over a year of their own free will.
“There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR”, said the Supreme Court bench, quashing the FIR and the charge sheet against the appellant.
Also read: Consensual sex if consent based on a “bleak possibility” of marriage is not rape, says MP high court

Need for legislative clarity

 The Orissa High Court heard a similar case, in which the petitioner had applied to the high court for bail. An FIR was filed against him for the commission of, among other offences, rape. The complainant had alleged that the petitioner had maintained a physical relationship with her under the false promise of marrying her, before eventually denying her marriage proposal.

The single judge bench of Justice S.K. Panigrahi, in the high court’s judgment, noted: ”[I]t needs to be brought forward that many of the complaints come from socially disadvantaged and poor segments of the society and rural areas, women from these sections are often lured into sex by men on false promises of marriage and then dumped as soon as they get pregnant. The rape law often fails to capture their plight. The law is well settled that consent obtained on a false promise to marry is not a valid consent. Since the framers of the law have specifically provided the circumstances when ‘consent’ amounts to ‘no consent’ in terms of Section 375 of IPC, consent for the sexual act on the pretext of marriage is not one of the circumstances mentioned under Section 375 of IPC. … The law holding that false promise to marriage amounts to rape appears to be erroneous, however, the plight of the victim and the probability of the accused tarnishing the dignity of the victim and her family need to be looked at while deliberating on the question of bail.”

“The law holding that false promise to marriage amounts to rape appears to be erroneous, however, the plight of the victim and the probability of the accused tarnishing the dignity of the victim and her family need to be looked at … There is a need for the amendment in the legislation defining what constitutes “sexual intercourse” with the prosecutrix on the “pretext of a false promise of marriage”: Orissa High Court

The high court underscored: ”A strict interpretation of the provisions of Section 375 IPC states that sexual intercourse with a woman without her consent is punishable as rape. Additionally, judiciary has dealt with this clamour with the use of concepts such as “misconception of facts under Section 90 of IPC” and “intention of accused from the beginning” to provide justice to the parties. However, a certain viewpoint has not been reached and is still under the shroud of confusion. There is a need for the amendment in the legislation defining what constitutes “sexual intercourse” with the prosecutrix on the “pretext of a false promise of marriage”. As in the present scenario, the law on this matter lacks clarity for the conviction of the accused.”
The noticeable divergence in the decisions on this point, as well as the wide scope for interpreting ‘consent’ in such situations indicates, as Justice Panigrahi pointed out in his ruling, the need to legislatively clarify what constitutes sexual Intercourse on false promise to marry, perhaps in line with the position taken by the Supreme Court in Pramod Suryabhan Pawar.
(Ninad Parikh is a final year journalism student at Tata Institute of Social Sciences, and an intern with The Leaflet. The views expressed are personal.)