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The case of Pradeep Kumar v. State of Bihar, 2007 [1] discusses how the Supreme Court if India views consent to sex given as a result of a promise to marry.

Excerpts from the judgment:

The crucial expression in Section 375 which defines Rape as ‘against her will’. It seems to connote that the offending act was despite resistance and opposition of the woman. IPC does not define ‘consent’ in positive terms. But what cannot be regarded as ‘consent’ is explained by Section 90 which reads as follows:

‘consent given firstly under fear of injury and secondly under a misconception of fact is not consent at all.’

In most of the decisions in which the meaning of the expression ‘consent’ under the IPC was discussed, reference was made to the passages occurring in Stroud’s Judicial Dictionary, Jowitt’s Dictionary on English Law, Words and Phrases, Permanent Edn. and other legal dictionaries. Stroud defines consent as ‘an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side’. Jowitt, while employing the same language added the following:

‘Consent supposes three things a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind.’

In Words and Phrases, Permanent Edn., Vol. 8-A, the following passages culled out from certain old decisions of the American courts are found:

‘adult female’s understanding of nature and consequences of sexual act must be intelligent understanding to constitute consent’.

Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent.

It was observed in Uday v. State of Karnataka (2003 (4) SCC 46) as under:

‘The courts in India have by and large adopted these tests to discover whether the consent was voluntary or whether it was vitiated so as not to be legal consent.’

There is a good analysis of the expression ‘consent’ in the context of Section 375 IPC in Rao Harnarain Singh Sheoji Singh v. State. (AIR 1958 Punj 123). The learned Judge had evidently drawn inspiration from the above passages in the law dictionaries. The observation of the learned Judge is as follows:

‘there is a difference between consent and submission and every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent’,

The said proposition is virtually a repetition of what was said by Coleridge, J. in R. v. Day (173 E.R. 1026) in 1841 as quoted in Words and Phrases (Permanent Edn.) at p. 205. The following remarks in Harnarain’s case (supra) are also pertinent:

‘Consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non-resistance and passive giving in cannot be deemed to be consent.’

The passages occurring in the above decision were either verbatim quoted with approval or in condensed form in the subsequent decisions: vide Anthony, In Re (AIR 1960 Madras 308), Gopi Shanker v. State of Rajasthan (AIR 1967 Rajasthan 159), Bhimrao v. State of Maharashtra (1975 Mah.LJ 660) and Vijayan Pillai v. State of Kerala (1989 (2) KLJ 234). All these decisions have been considered in Udays case (supra). The enunciation of law on the meaning and content of the expression ‘consent’ in the context of penal law as elucidated by Tekchand, J. in Harnarain’s case (supra) (which in turn was based on the above extracts from law dictionaries) has found its echo in the three-Judge Bench decision of this Court in State of H.P. v. Mango Ram (2000 (7) SCC 224). It was observed as follows:

‘Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.’

On the specific question whether the consent obtained on the basis of promise to marry which was not acted upon, could be regarded as consent for the purpose of Section 375 IPC, was dealt with by a Division Bench of the Calcutta High Court in Jayanti Rani Panda v. State of WB (1984 Cr.L.J. 1535). The relevant passage in this case has been cited in several other decisions. This is one of the cases referred to by this Court in Uday’s case (supra) approvingly. Without going into the details of that case, the crux of the case can be discerned from the following summary given at para 7:

‘Here the allegation of the complainant is that the accused used to visit her house and proposed to marry her. She consented to have sexual intercourse with the accused on a belief that the accused would really marry her. But one thing that strikes us is … why should she keep it a secret from her parents if really she had belief in that promise. Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence that at that time the accused had no intention of keeping that promise. It may be that subsequently when the girl conceived the accused might have felt otherwise. But even then the case in the petition of complainant is that the accused did not till then back out. Therefore it cannot be said that till then the accused had no intention of marrying the complainant even if he had held out any promise at all as alleged.’

The discussion that follows the above passage is important and is extracted hereunder:

‘The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the court can be assured that from the very inception the accused never really intended to marry her.’

The learned Judges referred to the decision of the Chancery Court in Edgington v. Fitzmaurice (1885 (29) Ch.D.459) and observed :

‘This decision lays down that a misstatement of the intention of the defendant in doing a particular act may be a misstatement of fact, and if the plaintiff was misled by it, an action of deceit may be founded on it. The particular observation at p. 483 runs to the following effect: There must be a misstatement of an existing fact. Therefore, in order to amount to a misstatement of fact the existing state of things and a misstatement as to that becomes relevant. In the absence of such evidence Section 90 cannot be called in aid in support of the contention that the consent of the complainant was obtained on a misconception of fact.’

After referring to the case-law on the subject, it was observed in Uday’s case (supra):

‘It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the 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. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them’.

The first two sentences in the above passage need some explanation. While we reiterate that a promise to marry without anything more will not give rise to ‘misconception of fact’ within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause second. This is what in fact was stressed by the Division Bench of the Calcutta High Court in the case of Jayanti Rani Pandas case (supra) which was approvingly referred to in Uday’s case (supra). The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end – ‘unless the court can be assured that from the very inception the accused never really intended to marry her’. (emphasis supplied) In the next para, the High Court referred to the vintage decision of the Chancery Court which laid down that a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an action of deceit can be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu case (vide passage quoted supra). By making the solitary observation that ‘a false promise is not a fact within the meaning of the Code’, it cannot be said that this Court has laid down the law differently. The observations following the aforesaid sentence are also equally important. The Court was cautious enough to add a qualification that no straitjacket formula could be evolved for determining whether the consent was given under a misconception of fact.

Source:

[1] Appeal (Crl.) 1086 Of 2007; Petitioner: Pradeep Kumar; Respondent: State Of Bihar And Anr.; Date Of Judgment: 17/08/2007; Bench: Dr. Arijit Pasayat & D.K. Jain; (Arising Out Of Slp (Crl.) No. 3072 Of 2006)
 http://www.judis.nic.in/supremecourt/qrydisp.asp?tfnm=29309