Saturday, 19 November 2011

‘Sexual exploitation’ on promise of marriage

‘Sexual exploitation’ on promise of marriage
Wednesday, April 20, 2011
http://lawjustice-bakeelsab.blogspot.com/2011/04/sexual-exploitation-on-promise-of.html
‘Sexual exploitation’ on promise of marriage
Most of the rape cases are meticulously well-planned to satisfy uncontrolled sexual lust and to realize sensuous celluloid images and fantasies with a sole motive to dominate over women. In fact before committing actual rape or ‘date rape’, rehearsal takes place many times in the intoxicated brain of the rapist. Invariably the victim is blamed, insulted and humiliated even by her own family members for slurring the so called ‘family honour and reputation’.

Having sex with a girl on the false promise of marriage and later refusing to tie the marriage knot may amount to commission of rape, particularly when the boy from very inception had no intention of marrying the girl. We may term it as ‘sexual exploitation’ on promise of marriage. Most often boys develop physical relations on false promise of marriage and continue till she become pregnant. Some time it is very difficult to abort and the matter come to the knowledge of family and neighbours. Mostly at that later stage cases are registered against the persons. Indian Courts have confronted several times with the question “whether Sexual intercourse with any girl on a false ‘promise of marriage’ is consent or not? If not Rape, is it ‘cheating’ or not?

If fully grown up girl consents to sex on a promise of marriage until she becomes pregnant is promiscuity
Calcutta High Court in Jayanti Rani Panda v. State of West Bengal & Anr., wherein the accused was a teacher of the local village school and used to visit the residence of the prosecutrix. One day during the absence of the parents of the prosecutrix he expressed his love for her and his desire to marry her. The prosecutrix was also willing and the accused promised to marry her once he obtained the consent of his parents. Acting on such assurance the prosecutrix started cohabiting with the accused and this continued for several months during which period the accused spent several nights with her. Eventually when she conceived and insisted that the marriage should be performed as quickly as possible, the accused suggested an abortion and agreed to marry her later. Since the proposal was not acceptable to the prosecutrix, the accused disowned the promise and stopped visiting her house. It was held that “if a fully grown up 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 and Section 90 IPC cannot be invoked unless the court can be assured that from the inception accused never intended to marry her.” (1984) Cri.L.J.1535, also see Hari Majhi vs. The State : 1990 Crl. L.J. 650 and Abhoy Pradhan vs. State of West Bengal : 1999 Crl. L.J. 3534.)

It amounts to cheating not rape
In another case the petitioner had sexual intercourse with the victim girl several times on false promise of marriage and she became pregnant. She informed her parents, and got Panchyat held on 30.7.1984 where again the petitioner gave false assurance that he would marry the girl. But when her parents requested him to marry her, he and the other accused persons abused girl and her parents and assaulted them with fists and slaps and chased and drove them inside their own house.
Relying on Jayanti Rani Panda case Hon’ble Justice Ram Nandan Prasad, of Patna High Court held that “though on the facts of the case, an offence of rape is not made out, it is obvious that by holding out the false promise of marriage the petitioner fraudulently induced the complainant to have sexual intercourse with him and but for this false promise she would not have consented to have sexual intercourse with him. The act of the petitioner, therefore, amounts to cheating as defined in Section 415, I.P.C. and as such prima facie amounts to an offence under Section 417, I.P.C. Besides this act of cheating, the petitioner and other accused are also alleged to have indulged in assaulting the intimidating the complainant and her parents which prima facie would give rise to an offences under Sections 323, and 506, I.P.C.” (Mir Wali Mohammad @ Kalu vs The State Of Bihar (1991 (1) BLJR 247 Order dated 2/7/1990)

‘intentional inducement’ giving ‘false of promise of marriage’ is cheating
Before Hon’ble Justice B.B. Vagyani of Bombay High Court the short point that arises for consideration is whether the offence of cheating as defined under section 415 of I.P.C. embraces cases in which no transfer of property is occasioned by the deception.

Case of emotions and passion in weak moments
In this case the prosecutrix is a divorced woman. After divorce, the prosecutrix started residing with her mother, where the accused came in contact with the prosecutrix. The casual acquaintance ultimately culminated into a love affair and after giving promise of marriage, he sexually exploited the prosecutrix on number of occasions. The nature brought this ‘indecent affair’ on the surface. When the prosecutrix became pregnant she asked the accused to fulfil his promise of marriage, but he flately refused to marry prosecutrix. Thereafter, the prosecutrix lodged a criminal complaint against the petitioner-accused on 30th April 1992 at Police Station, Adavat. FIR was registered under section 376 IPC and the Additional Sessions Judge, Amalner, Dist. Jalgaon, framed additional charge under section 417 of I.P.C. against the petitioner-accused.
While deciding quashing petition Hon’ble Justice Vagyani strongly relied on Marah Chandra Paul v. State of Tripura, (1997 C.R.I. 715) and held that the prosecutrix was intentionally induced to submit to sexual intercourse on false promise of marriage. The overt act on the part of the petitioner-accused has certainly caused damage or harm in body, mind and reputation of the person deceived. The indulgence of the petitioner-accused in sex with prosecutrix by means of ‘intentional inducement’ after giving ‘false of promise of marriage’ squarely falls within the ‘mischief’ of the definition of cheating as defined under section 415 of I.P.C. which is punishable under section 417 of I.P.C.” (Atmaram Mahadu More Vs State of Maharashtra (1998 (5) Bom CR 201 Order dated 13/11/1997)

Sufficient intelligence, significance and moral quality
Hon’ble Supreme Court in Uday Vs State of Karnataka on 19.2.2003 held that no straitjacket formula can be laid down for determining whether consent given by the prosecutrix was voluntary or under a misconception of fact, but following factors stand out;
a.   where a girl was of 19 years of age and had sufficient intelligence to understand the significance and moral quality of the act she was consenting to;
b.   she was conscious of the fact that her marriage was difficult on account of caste considerations;
c.    it was difficult to impute to the appellant knowledge the prosecutrix had consented in consequence of a misconception of fact arising from his promise, and
d.   there was no evidence to prove conclusively that the appellant never intended to marry the prosecutrix.

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