Rape and the promise of marriage
There are so many cases filed every day in our country where two persons of opposite gender have entered into a sexual relationship with the promise of marriage in the future. Later, when the relationship no longer exists, allegations of rape and cheating are brought.
As these kinds of events started or related with love and affection, therefore we need to consider other aspects also i.e. consent, deception and misconception of facts. In this regards, some significant question arises does consensual sex retrospectively establish rape upon breach of the promise to marry? Does the context of marriage only value a woman's consent as a matter of fact? Even so, does it constitute an offence of rape or that of cheating?
In one of the Indian case Deepak Gulati v State of Haryana (2013), the Supreme Court held that, 'there may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.'
In Uday v State of Karnataka (2003), the Supreme Court of India held, '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 Monwar Malik v The State, the Supreme Court held that, 'If an accused makes sexual intercourse with a girl above the age of 16 years with the consent of the girl, the accused will not be held guilty of rape for having sexual intercourse with the victim after having promised to marry her. Such conduct though socially condemnable and morally reprehensible would not constitute an offence under section 375 of the Penal Code as the act was done with the consent of the prosecutrix and was not done forcibly.'
In another Bangladeshi case, Lukus Miah v The State, the Apex court held, '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 2014, Indian Supreme Court bench comprising of Justice Vikramjit Sen and Justice S K Singh expressed concern over the rising number of cases where women failed in their affairs had filed rape cases against the men, accusing them of inducing them into a sexual affair on the promise of marriage. The court said, 'can moral transgressions like extra-marital affair be equated to rape when the woman enters into the relationship with open eyes? Can a breach of promise invite the charge of rape?'
Therefore, here we could see the Apex Court of both countries took the consent of the prosecutrix as a significant concern and adjudicate matters in such a way of discernment. Nevertheless, before reaching the conclusion of any case, the court may judge the evidence before it and the circumstances surrounding it.
Fahad Bin Siddique is a legal intern at Bangladesh Legal Aid and Services Trust (BLAST)