25, Jul 2023 | CJP Research Team
The Uttarakhand High Court on July 5, 2023 ruled in favour of a man who was accused of rape by the complainant woman on the pretext of false promise to marriage. The single judge bench of justice Sharad Kumar Sharma opined that “In fact, the offence under Section 376 of the IPC as of now in this modernised society is being misused as a weapon by the females to be mis-utilised (sic), as soon as there arise certain differences between herself and her male counterpart, and rather it is being used as a weapon to duress upon the other side for a number of undisclosed factors, and it cannot be ruled out, that the provisions contained under Section 376 of the IPC are being rampantly misused by the females,” the judge said.
The judgement has erroneously overlooked the fact that a man entered into a sexual relationship with the complainant on the false promise of marriage and even after he married someone else, he continued having sexual intercourse with her which clearly shows that he had mala fide intentions of just using the complainant for his sexual endeavours and had no intention of taking the relationship further.
The judgement is erroneous as it overlooks the fact that despite the marriage of the applicant he continued his relationship with the complainant without considering the fact of whether that (continued) relationship where the consent of complainant was taken had been made on ground of promising to divorce his wife and marrying the complainant. A finding that a section of the law is being misused, when rules related to “promises”, false or otherwise are not clearly defined, is loaded against the woman within such a relationship.
The Supreme Court has clearly opined that prerogative of section 90 IPC which defines consent is also applicable to section 376 IPC where the mere lack of evidence cannot be deemed as a ground for exemption from the offence committed.
The question as to whether rape was committed or not in cases where false promises have been made to marry goes to the heart of the question of knowledge and mala fide intention. This can be traced from the start when a couple in a consensual relationship together and thereafter one of them (the applicant before the High Court in this case) marries another (woman), still continues his liaison with the complainant. This establishes the fact of a mala fide intention as well as cheating under section 417 IPC. The judgement appears to clearly overlook certain principles of law.
Striking down a woman’s claims thus is also a case of judicial overreach when official data as provided by National Crime Records Bureau provides that only 8% of the reported rape cases are false.
It is important to know that in various judgements across the country there have been similar cases where the judges have taken deeply probing approach before delivering a verdict,
In recent times, with a decisive call for imbibing gender pro-active jurisprudential approaches have been evident in the words of renowned justices CJI Chandrachud and AK Sikri, such a verdict stands in stark contrast.
Such an attitude emanating from the higher judiciary when societal and familial struggles of women and sexual minorities for both equity and justice, hinders and obstructs the battle for emancipatory jurisprudence befitting the 21st century further.
Already, women who report sexual offences do so displaying firm autonomy and dignity but risking stigma.
As worrying, is the prevalent principle within the judiciary, that of res judicata, (the principle that a cause of action may not be re-litigated once it has been judged on the merits). Such verdicts as the one under discussion here often do not stand out as aberrations but influence the judiciary to follow the trend. The fallacious conclusions drawn by the higher judiciary in general related to both Sections 498A (domestic violence) and 376 (sexual assault) is that most or many complaints are false or the recourse that women take to seek retribution from men. Little needs to be said how harmful this jurisprudential trend is, rendering women offenders not victims, further imprinting a prevalent patriarchal mind set.
Such a notion has got recent backing from data published by Delhi Commission for Women that reported that 52.5% of the total rape cases reported in the state are “false”. The fact that women, who are victims of sexual assault often take back complaints even after the suspect had been identified, is a phenomenon, not only confined to India but also in developed nations like the United Kingdom (where in the year 2020 over 57% of the rape cases were withdrawn bh the victims). Reasons are an intimidating and insensitive official system, not the fault of women. Only because the law is open to misuse due to a large grey area left within the statute books, couples who live their lives with mixed attitudes to gender exploitation and violence within society and family, must not dub possible offences as false or motivated. In the year 2020 commonwealth human rights initiative (CHRI) and association for advocacy and legal initiatives (AALI) conducted a report investigation in 14 districts in the state after the case of rape and murder of a Dalit girl in Uttar Pradesh. The report has raised certain vital questions about the role of police in delaying and denying justice by forcing the victims to compromise and take back the matters by threatening them for their social image, by accusing the victims of filing fake rape cases without even an investigation. The report can be read https://cjp.org.in/up-police-adding-to-trauma-of-rape-survivors/ The report provides with the extensive profound information and answers to the decline in rape reports and victims taking their complaints back.
It is also important to know that one out of every three women suffer or have suffered domestic violence in India reveal reports of National Family Health Survey (NFHS). Various independent studies conducted in India have brought to light the fact that 50%-80% of women have suffered some form of public sexual harassment. From this, it can be opined that most of such crimes go unreported or are taken back by the complainant due to pressure from family or the societal maxim,“Logon ko Pata Chalega Humari Izzat Gir Jayegi” (People will come to know and our self-respect will be diminished).
Misogynist comments of influential people (including judges) can prove to be fatal because women who have really been through crimes and are unable to muster “required evidence or facts” in court somehow lose the legal battle, become further prey of social injustice. This strengthens the inevitable cycle of exposing women who do take steps, restricts further reports and legal battles, in a country where overall violence against women is sky high. These “facts” are often used by Judges and some men rights activist — misinterpreting withdrawal of cases or police complaints –belying the reality behind such withdrawals. Just because a matter has been taken back by a woman does not mean that the offence against her was not committed or the case was false; there are serious reasons behind such intimidation that leads to the withdrawal of the cases.
There have been judgements where similar questions have been raised:
In the year 2007, in Pradeep Kumar v. State of Bihar, the Supreme Court decided that the term ‘misconception of fact’ defined under Section 90 of IPC is broad enough to include all cases pertaining to misrepresentation of facts, deceit, fraud, etc. to which consent is given. Further, Section 3 of the Indian Evidence Act, of 1872 also provides for ‘intention’ to be treated as fact. Thus, if the intention of promising marriage is to deceive a female into establishing sexual intercourse, it will be treated as being used against her will.
In Deelip Singh v. State of Bihar in the year 2004, the Supreme Court held that consent taken from the prosecutrix would be vitiated if it was obtained on the pretext of a false promise of marriage by the accused.
The Supreme Court of India in State of Uttar Pradesh vs Naushad (2013) 16 SCC 651 had affirmed the law and held that where the promise to marry is false and the intention of the accused at the time of making the promise was not to abide by it but to deceive the victim to obtain her consent for sexual intercourse, there is a misconception of fact within the meaning of Section 90 that vitiates the woman’s consent.
More recently, in 2019, in the case of Anurag Soni v. State of Chattisgarh, the Supreme Court had observed that sexual intercourse on the false promise of marriage is also an offence under Section 417 of IPC which provides punishment for cheating. Thus, such consent shall not excuse the accused from the charges for the offence of rape under Section 375 of IPC.
Likewise, in Honnaiah v. State of Karnataka in the year 2000, the Karnataka High Court considered false promises as fraud. It further held that a mere ‘breach of promise’ would not come under the ambit of ‘misconception of fact’ defined under Section 90 unless it is coupled with mala fide intention. For example, in the case of Uday v. State of Karnataka in the year 2003, the Supreme Court observed that the consent given by the victim to sexual intercourse with a person with whom she was deeply in love on a promise to marry her in the future, cannot be said to a misconception of fact under Section 90 of IPC i.e. the promise of marriage must be a false promise, given in bad faith and with no intention of being adhered to at the time it was given to constitute as rape.
It is important to know that just like any other legal system our legal system also lags in various aspects, the criminal law (IPC) and our criminal justice system are not perfect. Making sweeping observations like women in modern day “use such laws as weapon” is unwarranted. The statement rings of a misogynist narrative. It is after years of struggle against violence and assault that women have ensured certain laws and provisions got enacted that protect their dignity and equality, preserve their rights as a citizen. It should be left to trials –whenever they take place–to decide on the truth and falsity of the complaint, following principles of natural justice that is Audi Alterem partem, that, whoever is found guilty after trial shall be punished.
The judgement may be read here.
This article has been researched by Nabeel Masood, an intern working with the organisation.
 SCC 413 appeal (crl) 1086 of 2007
 AIR 2005 SC 203
 SLP (criminal) No 618/2019
 Appeal (crl) 336 of 1996
Data on UK rape cases- https://www.bbc.co.uk/news/uk-48095118.amp