The Kerala High Court recently held that lack of consent in a rape case cannot be presumed merely because a man entered into marriage with another woman after engaging in a sexual act with the victim, reports Bar and Bench.
A Division Bench of Justices A Muhamed Mustaque and Dr. Kauser Edappagath held that sex on promise to marry will amount to rape only if the accused has violated the decisional autonomy of the victim.
The Court stated that a combined reading of Section 90 of the IPC and Section 114-A of the Indian Evidence Act gives the following proposition of law in the context of sexual relationship on a promise to marry:
- Law presumes lack of consent when a woman states in evidence that she did not consent, if the prosecution is able to prove sexual intercourse by the accused;
- This presumption is available in favour of the prosecution if the consent was obtained in any of the circumstances narrated under Section 90 of the IPC;
- The woman must state in evidence the foundational facts constituting elements for false promise or non disclosure of materials facts.
Applying the same to the facts of the instant case, the Court held that merely for the reason that the accused contracted another marriage immediately after the sexual act with the victim cannot give rise to the presumption of lack of consent.
“Merely for the reason that the accused contracted another marriage immediately after the sexual act with the victim cannot give rise to the presumption of lack of consent,” the Court held.
It, therefore, set aside the conviction of a man for the offence of rape under Section 375 of the Indian Penal Code.
The Court, however, also held that a non-disclosure of material facts which would have impacted a woman’s consent would amount to violation of her sexual autonomy which is envisaged under Section 375 of the IPC.
“Non-disclosure of material facts by the accused affecting the consent would amount to violation of the sexual autonomy of the woman. Sexual autonomy consists of two requirements. First, the possession of relevant information and second the ability to act in accordance with the personal assessment of that information. The material facts known to the accused if not shared with the woman at the time of committing the sexual act, certainly would encroach upon her right to protect her decisional autonomy. Section 375 of IPC clearly envisages any violation of sexual decisional autonomy as an offence“, the judgement stated.
Moreover, the Court stated that if there were any uncertainties about the marriage, the man is bound to disclose the same.
“The offender may have the intention to marry; he may also know at the time of committing the sexual act that there are obstacles to the marriage. If he was not certain about the marriage, he is bound to disclose that fact to the woman. If such fact was not disclosed, consent may fall under the category of ‘misconception of fact’ and the consent would be vitiated under the category of misconception of fact as referred to in Section 90 of the IPC,” the Court said.
The Court was hearing an appeal moved by a man against the order of a trial court which had convicted him for offence under Section 376 (punishment for rape) of the IPC and sentenced to undergo imprisonment for life and to pay a fine of ?50,000.
The appellant and the prosecutrix who were relatives, were in love for over 10 years. They had sex on three occasions but upon facing resistance from his parents, the appellant married another woman.
Though the prosecutrix deposed that she had been physically exploited/abused, it came out in her testimony that the sexual intercourse was not a case of forcible sexual act against her will but a sexual act on a promise to marry where the consent was implicit.
The judgement rendered by the Court began with a summary of the questions:
- In what circumstances does sex on a promise to marry become rape?
- Does the law postulate determination of the criminality of the sexual act in the context of ‘consent’ on the premise of inviolability of sexual autonomy?
- Does law contemplate to categorise a sexual act based on consent only on the understanding of the woman?
The Court opined that the concept of consent of a woman on a promise to marry, was an “enigma for the prosecution to prove“, as it refers to the state of mind of both parties in a sexual act.
Moreover, since the IPC does not contemplate a gender neutral provision for rape, the Court will have to weigh the relative positions of the accused and the woman in terms of dominant subordinate roles.
“It is to be remembered that the statutory provisions of the offence of rape as understood in the Indian Penal Code, is not gender neutral. A woman, on a false promise of marrying and having sexual relationship with a man, with the consent of the latter obtained on such false promise, cannot be punished for rape. However, a man on a false promise of marrying a woman and having sexual relationship with the woman would lead to the prosecution’s case of rape. The law, therefore, creates a fictitious assumption that the man is always in a position to dominate the will of the woman. The understanding of consent therefore, has to be related to the dominant and subordinate relationship in a sexual act,” the Court said.
The Court then went into the distinction between sexual relationships based on false promise to marry and breach of promise to marry.
The Court opined that if the accused had no real intention to marry, it can be easily concluded that the consent of the victim is a misconception of fact. However, in some cases the accused may have had every intention of marrying but there might be factors that hampered the same.
“Had the accused disclosed information about the chances of marriage, would she have consented? If there was no full disclosure of factors that could have a bearing on the consent of the woman, can we hold that such cases fall in the category of breach of promise?“, the Court asked as it proceeded to discuss these points on ostensible consent and sexual autonomy in detail.
Among the various ways in which rape is categorised in law, the Court observed that sex on promise to marry can be established as rape only if the accused has violated the decisional autonomy of the victim at the time of having sex with the victim.
While false promise to marry has already been widely considered in a host of precedents, the Court found that non-disclosure of material facts, affecting the consent of the victim has not been discussed.
Before embarking on a study of the literature available on said aspect, the Court said that sexual autonomy is a natural right of a woman which the legislature intends to protect as well.
“Sexual autonomy of a woman to decide upon her body is a natural right and part of her liberty. The dominant nature of men to subordinate the decisional autonomy of women has been perceived by the legislature while making the penal provision as not gender neutral. The law presumes a man’s position to subordinate the decisional autonomy of a woman. The idea of the legislature is to protect the sexual autonomy of the woman,” the Bench said.
Upon a combined reading of Section 90 of the IPC and Section 114-A of the Indian Evidence Act, the Court held that if the material facts which might affect consent and are not revealed to the partner, the consent so obtained would violate the decisional autonomy of the woman.
In the instant, however, the court noted that the sexual act committed by the accused was with real intention to marry the victim but he could not hold onto his promise due to resistance from his family.
“We cannot ignore the social circumstances of the parties. The lack of consent has to be stated by the prosecutrix“, the Court said.
In the absence of any other evidence on the side of the prosecution, the conduct of the accused can only be treated as a breach of promise.
Therefore, the Court allowed the appeal and set aside the appellants conviction and sentence.
