Rape on False Promise of Marriage: The Law and What You Must Do

Why in India is it rape if there is sexual intercourse on the false promise of marriage?

We all know the Nirbhaya Rape Case, the Hyderabad Rape Case, forcible sexual intercourse by strangers using brute force, friends and family using force to commit rape.
Basically any instance where there is no consent, and still sexual intercourse occurs.

However, there is the situation where consensual sexual intercourse is also rape.

Section 375 of the IPC gives the definition of rape, while Section 376 provides that rape is punishable offence with these many years of imprisonment.

One of the ingredients of Section 375 is that if there is sexual intercourse without the consent of the woman, then it is rape.

But it is Section 90 of the IPC, which states that for the purpose of anything mentioned in the IPC, consent is not consent if given under a misconception of fact, and is a consequence of such misconception of fact.

Applying these two principles together, if a man obtains consent, but on the false promise that he will marry the girl, then such consent is no consent, and therefore the having sex without the consent of the girl is rape.

In India, there is a huge social taboo on pre-marital sex, and a lot of women do not want to engage in pre-marital sex.
Since several decades, women in India started going out on dates, or getting into relationships with the intent to get married in the future.

A lot of times, a woman would not want to have sex, but she would have sex only because her boyfriend/fiancé would convince her by saying that they will get married soon enough anyways, upon which she would consent.

It is because of this situation that this unique offence of rape on the false promise of marriage was recognised by Indian Courts.

If subsequently the man would go back on his word, the woman can prosecute him for rape.

If falsely accused under this offence, it is an absolute must for the man accused of this crime to rush to court and seek anticipatory bail.

The accused must cite all the relevant judgments of the Supreme Court and various High Courts, and convince the Court that the sex did not happen as a result of a promise to marry, and happened out of mutual love and attraction, and with consent, and if there was a promise of marriage, it happened after the sexual intercourse took place.

In the alternative, the accused must plead that there was indeed an intention to marry, but there was a subsequent impediment due to which the marriage perhaps could not take place.

For a woman who has suffered this situation, it is imperative that you immediately, as soon as possible, report the matter to the police, without delay. The more the delay, the greater the chances of acquittal.
Also, often the police do not register your FIR, and sometimes even do not give acknowledgment of having received your complaint.

In such situation, you must approach the magistrate who will then direct the police to register the FIR. You must also initiate proceedings under Section 166A of the IPC, under which the police officer can go to jail for 6 months to 2 years for not registering a rape case.
And this is again a very important reason why any person accused of rape must immediately run to seek anticipatory bail under Section 438 of the CrPC, because the police, even if they see a clearly fictitious case, the threat of punishment under Section 166A looming over their head, they always register FIR.
And because the offence is cognizable, the police have the authority to investigate the case without any permission required by the Magistrate, and investigation means arrest in the serious offence of rape.

And because it is a non-bailable offence, it is only the court which will grant bail to the accused person who is arrested.

Practically, courts deny bail to the accused person. And even if you convince the court that you are innocent, from experience I can say that if arrested, the lawyer drafting the application, the judge issuing notice, arguments, the judge deciding the case, in all likelihood, you will have spent at least a month in custody.

Therefore, anticipatory, that is pre-arrest bail is a must.

I am a Delhi based lawyer.

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