ABSTRACT
‘Rape’ is considered to be one of the most
serious offences against society. Every woman has a right to maintain her
physical status and preserve virginity. Even a woman of easy virtue can not be
compelled to have intercourse against her will or consent. ‘Rape’ is sexual act
against the will of a woman. If a woman gives her consent for intercourse on a
false promise of marriage, such consent cannot be a valid consent but such an
act is really a ‘rape’ is a disputed matter and this dispute is yet continued
at various levels. The present paper intends to examine the situation with the
help of case studies and citations.
INTRODUCTION
‘Rape’ or ‘Sexual
assault’ is considered to be a serious offence punishable under Section 376
of IPC. ‘Rape’, broadly speaking, is the ravishment of women against her will. The provisions of Section 376-A IPC is
attracted in the case of intercourse by a man committed by a public servant
with woman in custody. The sexual assault of a student in school campus by a
teacher attracts offence under section 376-B of IPC. The provisions of section
376-C it is attracted when intercourse is made by superintendent of jail,
remand home etc. There can be no charge of ‘Rape’ against a woman but if
sufficient evidences are available on records, a woman can be charged of abatement
of offence of rape committed by co-accused.
The essential ingredients of ‘Rape’ are as
follows :
• Against
her will
• Without
her consent
• With
consent obtained by putting her or any other person, in whom she is under
custody in fear of death or of hurt
• With
consent but given under the misconception of fact that the man was her husband.
The measurement of punishment in a case of
rape can not depend upon the social status of the eviction or the accused but
it depends upon the conduct of the accused, the state and age of victim and the
gravity of criminal act. Consent given by a minor is no consent in
the eye of law.
Whether sexual intercourse on false promise
of Marriage is a ‘Rape’ ?
A large number of cases of ‘Rape’ are being registered
in different part of our country in which the victim alleges that she has
voluntarily undergone sexual intercourse with the accused on her false promise
of marriage. The opinion of experts and High Courts on the point are different,
some High Courts are of the opinion that if the women has given consent for sex
on the promise of marriage which turns to be false, it is ‘rape’. Other High
Courts are of the views that when an adult woman gives her consent to sex,
despite knowing well its consequences and the ad being immoral, then she can
not claim to be raped against her will. The following two case-studies, for
example, may be taken up for consideration:
• A
female Dy S.P. posted at Bhabu (Inalmur) in Bihar lodged FIR against his S.P.
alleging ‘rape’ on the false promise of marriage.
• An
assistant professor of JNU lodged FIR against her Ph.D. research scholar rape
though she admitted sex voluntarily on the promise of marriage.
The Hon’ble Andhra Pradesh High Court in ‘Addepalli Settibabu v. State of A.P. held that in case an educate and adult girl
has given consent for sexual intercourse on the false promise of marriage; the
such consent is not a valid consent in law as it has been obtained by fraud.
On the
contrary, Hon’ble Calcutta High Court in Hari
Manjhi v. State of West Bengal, held that the sexual intercourse with a girl
above 16 years, who voluntarily agrees for sexual intercourse on assurance of
marriage despite knowing the is not impermissible in society, then such act is
not a rape. Similar views were expressed by Hon’ble Patna High Court in Kuber
Chandra Das v. State of Bihar and Hon’ble Apex Court in ‘Pradeep Kumar Verma v. State of Bihar as well.
A third opinion has also come forward, on the
point. In a recent judgment in ‘Shanil v.
State of Kerala
held that accused has actual intention to marry but letter denied due to
certain subsequent compelling circumstances, then it is not a rape and if the
accused has no intention to marry right from the very beginning and his promise
was mala fide, then it is a case of cheating and deception but not a rape.
CONCLUSION
Every woman has right to maintain her
physical status and virginity. Even a woman of easy virtue or a prostate cannot
be compelled for sex without her consent. But is can not be easily denied that
when an adult and educated woman gives her consent for intercourse in
anticipation of certain advantages such as monetary benefits, promotion in
service, marriage etc. then she can not or should not be permitted to turn
around to allege that she was raped. In such circumstances, the essential
ingredients of rape i.e. against her will, without her consent are totally
lacking. But if the intention of accused was, really mala fide at the time of
sexual intercourse of course it is a case of cheating and deception under
section 417, IPC but at least not a ‘rape’ under section 376, IPC.