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“Consensual Sex On Promise Of Marriage, Is Not Rape” Argues A Supreme Court Lawyer

Consensual Sex on Promise of Marriage not Rape
Consensual Sex on Promise of Marriage is Not Rape

When A Relationship Turns Into Rape

When in a relation, a man is always vulnerable to be a rapist as on mere allegation of the woman even after many years. That is why we see live-in relations of years being termed as rape by the woman. But, how come a consensual sex is ever called as rape or was it the invention of some judges.

Now an advocate practicing in Indian Supreme Court has challenged the validity of “Sex on the promise of marriage” as being called rape in India criminal justice system. Not only this, he has challenged this as he said this crime is invented by judges and does not exist in Indian Penal Code, 1860 and is completely unconstitutional.

Advct. K V Dhananjay had written a letter in 2015 to the then Law Minister Mr. Sadanada Gowda seeking a complete revoking of all such convictions in the past. In this article published on Legally India website Advct. Dhananjay claimed that he had waited for one year before publishing his letter as he thought the law minister would take suitable action towards this but he didn’t.

Legally Speaking

Dhananjay stated in his letter that while putting his points together he had ignored the amendments to Indian Penal Code, 1860 made in 2013. He stated that in last decade there was a sudden surge in such rape cases where sex between two consenting adults was termed as rape when the marriage did not take place at a later point in time. He stated that this was purely judge invented rape that is against the basic tenets of IPC or constitution.

The SC Advocate argued that under section 375 of IPC, rape is a crime committed against the “will” or “consent” of a woman. The punishment for rape is given in section 376 of IPC. He argued that we needed to first understand the crime per se before delving into the branches of the crime. He explained that since pre-marital sex is not a custom or accepted social norm anywhere in Indian culture this sex has no sanction in Indian tradition.

He argued that criminal laws of the land must be made by our parliament and NOT by individual judges who had invented this theory of rape.

Advct. Dhananjay’s main arguments in justification of this are the following –

  1. The intended audience for Criminal laws are lay people and the interpretation to this is not open to change by any advocate or judge. Thus if the law stated something in original statute, it could not be interpreted differently by anyone later. He said, that the assumption that lawmakers would have made a mistake while drafting a law is not acceptable.
  2. He argued that if there exists a doubt in the interpretation of a law, the law needs to be interpreted in a manner to favour the accused because a dubious or unclear law can’t be used against any person to punish him/her.
  3. Advct. Dhananjay also argued that morality and law are two different aspects of our life and no judge can punish one for an immoral act without the sanction of law.
  4. He said, no provision in the penal statute should be so read as to make a host of other provisions to loosen all their meaning.
  5. He argued that in terms of the definition of rape that is mentioned in IPC 375 (fourth point) the legislature only wanted to punish men who were not husbands but made the women believe that they were husbands. The legislature never wanted to punish someone who was not a husband but had consented to be a husband in future.

IPC 375 And Promise of Marriage

Advct. Dhananjay argues that IPC 375 does not criminalize the offense of “sex on the promise of marriage” as rape at all and all judges including many supreme court judges had been wrongfully and illegally convicting innocent boys of a serious crime like rape.

He examined different cases where consensual-intercourse-became-rape-afterwards and found that judges took three broad tests to determine such cases –

  1. Man did not ever have any intention to marry the girl at the time of intercourse
  2. The girl had truly believed that she would get married to the man afterwards
  3. The man became deceptive later and refused to marry the girl

At this juncture he explained the meaning of ‘consent’ in IPC. He explained that IPC says

=====================================================================

“consent may not be free if there is a misconception of “fact” on the part of the person giving consent”. So he said – and I quote him here – “if a man does not intend to marry a girl and yet, asks her to have intercourse with him by promising to marry her and if the girl believes him then and agrees to an intercourse, she was under a misconception of fact.”

=====================================================================

He said that it is unsatisfactory reasoning that (and I quote him again) –

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

“when the marriage does not take place in the future as promised in such a case, the fact that it does not take place will show that the girl was under a misconception of fact and the intercourse gets established as a rape at that point of the marriage not taking place in the future.”

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

He explained the term ‘Consent’ as described in section 90 of IPC and showed that to understand the definition of ‘consent’ as described in IPC 90 one needs to understand ‘General Exceptions’ marked in IPC Section 6. It says, “any penal provision in the IPC must be understood with reference to the chapter ‘General Exceptions”.

He argues that even though the IPC 375 definition never states that a child under the age of 7 years can’t commit rape but every law must be understood in light of ‘general exceptions’ that says nothing committed by a child under the age of seven years will be considered as a crime. This need not be repeated in every law, it says.

Similarly, he gives another example of a police officer A arresting a suspect B in a crime without any warrant. A is not guilty of any offense as he is duty bound to do it.

General Exception of IPC

However, in his argument, he pointed out that ‘General Exception’ section of IPC needs to be consulted only when an act constitutes a crime, NOT before that. But in Consensual-intercourse-becomes-rape-afterwards theory does not constitute the offense as defined in IPC in the first place. He said, that our judges have created this new crime out of nothing but completely based on exceptions.

Now he further explained that section 90 of IPC that defines the term ‘Consent’ is not an exception but an ‘explanation’. He then took an example from original IPC notes and showed that the notes in IPC emphasized that ‘criminal quality of any act which is described by a word here explained, must depend on the definition in which it occurs’. So one needs to look at the original definition of the crime in IPC 375 rather than in “General Exception” in IPC 90 or IPC 6.

He explained further with an example of an adult woman who knows nothing about sex or intercourse visits a doctor and the doctor tells her that in order to treat her, he needed to have intercourse with her and gets her consent. This is “Misinterpretation of the fact” per IPC 90 because the woman misinterprets the act of intercourse as something else. However, in cases of Consensual-intercourse-becomes-rape-afterwards, the girl knows what intercourse is and thus does not constitute the crime at all.

He gave an equally beautiful example to explain how a sexual act can become rape when it is not rape in reality. He said that if a man has grey hair and looks unattractive and decides to color his hair black. If a girl agrees to have sex with him by seeing him in black hair and later discovers that he, in fact, had grey hair, IPC 375 does not make that a crime of ‘rape’. However, IPC 90 makes that rape as it was done by deception.

He thus stated that if IPC 90 is taken to define rape, IPC 375 will be a mockery of all known principles of interpretation.

In the end, he explained with examples of laws from other countries and requested Indian govt. to recall all such punishments and uphold the sanctity of the IPC.

***

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27 comments

  3. Indian family system has been ruined by feminists with help of foreign funds as well as foreign influence to disharmonize families in India. Gender biased laws have proved more harmful to both gender than gaining any thing out of false cases, Biased laws must be amended without further delay.

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  4. Was interesting judgement but needs to be examined from ethical point of view. Laws are framed in a manner to be just towards all, so be just law. As laws reflect the order of society, ethics frames the order itself. The sole criteria should be to see that there is no deceit on part of promisor.

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  5. This is very much logical to say that IPC 1860 must be interprated in the sprite of the words mentioned and definitions, and exceptions related to the various sections and sub sections. But my understanding which is still in the making is not fully against the argument proposed by the eminent law expert but as a rational citizen if I see the assumptions based on which the explanation of premarital sex not as rape is very narrow and and is in line of ignoring the justice as per say.
    I fully agree with your conviction sir, that there are many judges invented judgments are there and that should be there , I agree with you that some may not be the first best but given the social and cultural constraints that are there as second best, I have not a point of doubt about your understanding about the working of an advocate and a judge both work for ensuring the highest value called justice, but the micro and macro view of them put them on diametrically opposite role for society, you have done your best sir as an advocate but what you called “pre marital sex”
    Not not a rape as if the pretext of marriage on which according to you not a crime, is violated in future.
    Sir I feel that you are wrong as a judge, as if you’re so, your profession of highest quality and one of the pious nature demand from you the visionary move under given constraints which need to fill the gap of inaction of our legislators.
    The core of my argument derives a lot from political economy. And so I want to explain my assumptions on which my critical dissenting line falls.
    Any where the justice done for the reason of establishing an euphoric society which always should be there in the mind of involved personal. And for that matter you need to keep every limitations what the current state of our society polity and economy live, while quoting the judgments.
    While running the equation of justice one is not supposed to wait for the other variables to work properly, and most of the crime in any society is done to fulfill ones “utility” I will not call the cause as benifit what you perceive, in economics “utility” is ethically neutral.
    If utility and objectivity will be give a chance of free play then can you visualize the face of society, which is always in the making of which I am an element…
    With regards
    Sanjay

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  6. This is very much logical to say that IPC 1860 must be interprated in the sprite of the words mentioned and definitions, and exceptions related to the various sections and sub sections. But my understanding which is still in the making is not fully against the argument proposed by the eminent law expert but as a rational citizen if I see the assumptions based on which the explanation of premarital sex not as rape is very narrow and and is in line of ignoring the justice as per say.
    I fully agree with your conviction sir, that there are many judges invented definitions are there and that should be there , I agree with you that some may not be the first best but given the social and cultural constraints that are there as second best, I have not any point of doubt about your understanding about the working of an advocate and a judge both work for ensuring the highest value called justice, but the micro and macro view of them put them on diametrically opposite role for society, you have done your best sir as an advocate but what you called “pre marital sex”
    not a rape as if the pretext of marriage on which according to you not a crime, is violated in future.
    Sir I feel that you are wrong as a judge, as if you’re so, your profession of highest quality and one of the pious nature demand from you the visionary move under given constraints which need to fill the gap of inaction of our legislators.
    The core of my argument derives a lot from political economy. And so I want to explain my assumptions on which my dissenting line falls.
    Any where the justice done for the reason of establishing an euphoric society which always should be there in the mind of involved personal. And for that matter you need to keep every limitations what the current state of our society polity and economy live, while quoting the judgments.
    While running the equation of justice one is not supposed to wait for the other variables to work properly, and most of the crime in any society is done to fulfill ones “utility” I will not call the cause as benifit what you perceive, in economics “utility” is ethically neutral.
    If utility and objectivity will be give a chance of free play then can you visualize the face of society, which is always in the making of which I am an element…
    With regards
    Sanjay

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  7. Out of so called cheating girl looses her virtue , chastity and virginity. In cheating most of cases come of worldly possessions which can be earned back. My question is can virginity be earned back? Society where honor killings, child abortion, prostitution, suicides are quiet evident do you think only girl is responsible for this ? Was truly trusting the guy a mistake only on her part irrespective of age and education she possess? We all agree that without trust no relationship exists. Guy promises to marry. She trusted him too much so bad. That’s why wreck her trust and use her body and leave her when he finds suitable. Does this not amount to rape? How is it consensual? Where is the girl agreeing for sex? Fact is marriage and misconception of fact is done by guy. Any girl who is aged has parents or relations who can get her married. Only because she trusted someone it doesn’t mean she is meant for sextual use and ditched. It is time now that guy should take Responsibility of his action. Cheating is such a small word. The judges who has given rape sentence were not fools or stupids. If you really want to help society fight against weak, poor, innocent people. If you think after having sex or if she’s conceived out of bad relationship and she files a rape case she is neither neurotic nor she deserves her fate. If you can give her back what she she has lost then surely justice will be done.

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    • Just few quick questions to you…. Does the society or law promises that every girl born will get married ??? If a girl loses her virginity, and because of that she cannot get married, then where is the crime and who commits that crime ??? What if the case the genders are reversed ??? And finally why are you not fighting for making the crime of rape gender neutral, is it because you think men’s consent is on and “Yes” by default, and women are hypo-sexual in nature ???

      The last question is put here, as a outcome of the 3rd question, that you seem to have not considered anywhere.

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      • I am sad many people have attitude like you. I have empathy for you. This topic is not about gender equality, feminism, sexual orientation as such. I beg you to watch the following videos.

        I am not saying the whole men race is bad just because one guy cheats a girl dishonoring her integrity and trust. Violence has no gender. We must stop gender hypocrisy. This leads to biased thinking about this issue. Unfortunately we cannot have one law for all genders in this issue. If cases like rape, physical abuse, domestic violence etc. faced by men or any gender they should come forward and fight for justice. Then possibly we can think of one law for all genders and apply it in all law sections and not just this case! But this doesn’t mean we should be ignorant towards current issue as woman is involved in sex with consent. I strongly believe sex by fraudulent means or misusing trust is same as rape. From around 1000 rape cases filed I have researched one fact is evident in the case of consensual sex on promise of marriage that is woman is solely held responsible for the trauma she is facing, the way she is being treated in the society, the job, social status, respect, reputation she lost for coming out and telling people and fighting for justice. If she raises her voice to seek justice no one supports including her family! Do you know what the agony of her parents and family is? My question is do men face the same situation? Say a man says I had sex. He shows off he is a macho man! I’ve never come across any case lodged till now where a guy cries I lost my virginity by false promise of marriage! I am treated very badly by society for it! (It sounds hilarious! But if in fact man suffers abuse or agony because of it I strongly support him to fight for justice).

        If you think woman better keep quiet since she was involved in sex and it was never a crime as she herself consented (with false promise of marriage/ trusting her partner irrespective of her education and age .. in most rape cases filed she would never agree for such things if she knew his intentions in the first place which is not at all consenting as she is not a prostitute), it is more like asking a sexually exploited raped victim with violence to keep quiet since she was involved in sex but without consent. Or are you trying to say common this woman enjoyed sex and now she saying it is crime! It is rape! Hilarious!…… If so I pity you!
        One of the social taboo is that why men when confronted with the girl’s family and asked for marriage simply refuse? Well such men often abscond and disappear or tend most likely to commit crime fearing to take the responsibility. What will be the future of the girl then? We are simply encouraging men not to take responsibility of their actions! Most victim woman in India have this attitude that yes they deserved to be sexually exploited and never raise voice against it. Why the society discourages woman to be quiet or hide it? Probably because she is phys-co/seeking revenge/ it is an emotional problem not a crime/ she’s characterless, no sanskar or upbringing/ better leave her, outcast her/ marry her off by hiding this/ she wants publicity/ shameless she is telling us this happened/ was she killed after having sex ? No! It is not crime / was there any violence on her? No! It is not crime and so on. (recently remember actress vijaylakshmi who filed rape case against seeman and response of people towards her?) Is it not hiding crime or having dangerous attitude same as supporting crime?

        I am raising voice against worst offenders of trust. Misusing trust for sheer lust satisfaction is what I am fighting for. It is same as rape. If you feel it is not then would you marry the victim after knowing she had sex with someone else before marriage and was cheated? If yes please mention your email id in the comment below! I and many people who read this blog will assist you for it! You deserve respect! Even a Nobel prize given for such a stand is less for showing humanity and kindness!

        What I understand of law is we can seek justice and not marriage. So law doesn’t promise marriage for every girl born but justice for the victim as her life is wrecked. I truly believe by changing our attitude we can in fact acknowledge / prevent such crime and address problems related. If this crime is neglected then our future generation has to face many problems which I have already mentioned and I recently found more – AIDS!

        Now if you feel my comment is boring and it is long/ cannot be agreed upon / comment is offending male race/ supporting gender hypocrisy then no problem. I will pray for your well-being and no need to post any more questions. I have just placed my research summary in front and I am not biased in thinking and it is based on facts and not some emotional assumptions or imaginations. If you all find this comment agreeable then give it a like! It’ll boost me up to fight against the cause and research more rape cases! Thank u 😉

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        • Do you even read your highly enlightened views before posting it ?? You conveniently said I need not ask any more question, and you are apparently praying that I don’t ask questions that has potential to dissect your so called research and analysis and lays it thread bare for all world to see how bogus it is…. You can keep your pity and prayers to yourself….

          As far as my first question here in response to admittedly very boring and un-necessarily lengthy reply of yours, I am reiterating it. — “Do you even read your highly enlightened views before posting it ??” — This question, just this question will show to any discerning person how bogus is almost all your claims and how it is only trying to appeal to emotions of people, who don’t want to think logically for solutions to the problems you declare are enormous and worth considering. So I am saving you from other many questions, as well saving myself from some obnoxious smell after reading through your feminist vomit.

          Regarding the question I asked — You claimed that women who get involved in sexual activity casually or otherwise outside marriage are shammed and are not preferred for marriage by guys, whereas men don’t get the same treatment. You want to fight against this so called phenomenon which you consider is equivalent to rape or may be even bigger in gravity. While you wrote that at the beginning and middle of your reply, towards the end or somewhere before that, you also claimed that if I can marry a woman who has had sex outside marriage or pre-marriage, then you would praise me or consider worthy of some great prize of your imagination.

          Whom are you fooling ?? Considering you are a male (by your display name), I really saw through seemingly neat, but actually stupid ploy to hoodwink people with emotions to spread feminist sob stories that have digested well and assimilated into your brain. It is not other men or society as a whole that considers women not fit for marriage if they had pre-marital sex or experienced in sexual matters.

          IT IS MORONS LIKE YOU who consider women not fit for marriage if they are experienced in sexual matters. And THEN YOU THINK you are clever enough to twist it in such a way that you can accuse a whole lot men and a large part of society for that TWISTED MENTALITY of YOURS without anyone ever knowing.

          And the above 2-3 paragraphs fairly applies to you, even if by remote chance you are a female. Because by trying to keep both feet planted on 2 different boats for maximum benefit, you don’t mind blaming all men or society. Because even if people like you (larger or smaller in number than other free thinking people) debase female sexuality, it is not your prerogative nor your any almighty given human right to teach twisted morality that you have declared as the best moral ways to live and think about sexuality.

          There is obvious difference between female and male sexuality and that difference is not cultural in origin, whether your feminism infested brain like it or not. PERIOD.

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  8. as if what u r telling is better logically for anyone ? to prove anyone’s point there has to be evidence. i have put sentences which are presented in the rape cases filed.

    now since you are telling so much there has to be some substance for it. So please prove your own point logically and with reasons cause i strongly feel you don’t live in India. You are some freak supposedly who has wrecked many girls life! if not prove your points with evidence. don’t shout foul stuff. no ones gonna hear u!

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    • I concur that u didn’t have the guts to reply to my reply thread, thus posted your comment on the main page…… But I am laughing my butt off because of your claim that no-one will listen and also because of your imaginative brain producing allegations against me as a person on individual level, without even knowing my name or place of residence…… I am laughing, because you not only read what I wrote, you chose to reply. You wrote about your feeling, which automatically discounts the logic. And for a second let me tell you that I am not the one who is discounting your logic, you yourself are, because you bring in feeling without any logical proof, and accuse others of that — a very nice ploy that has been employed by feminists for several decades now…….

      Good luck in conveying your feelings when you get caught in the mesh of your misandry and irresponsible level inequality that your ilks promote in the name of equality, that is neither equitable and nor charitable…..

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      • hey bro! there has to be a reason and meaning as to why we are even commenting. I did say my point of view. You are not agreeing for it, its fine with me. But you have your own voice, your own thinking. I just wanted to know what it is with some substance , examples or anything valid as we are discussing about law. Each and every voice should be respected and considered. I respect you and your view! And i apologize cuz i was offensive! peace!!

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        • you should not apologise. you put your point honestly. arrogance and stupidity never deserves respect. it seems duck face #parthasadhukhan and abuser #exploradven are not raised in a family with mother and sisters. talking about woman or any perspective in a disrespectful way shows their worst attitude. I urge Malefactor to ban such people from this website.

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        • #aanchalsanghvi – Who is the abuser your or who is duck face…. You just know how to try and use expletives and accusations in a politically correct way, isn’t it…. First you say the blogger needs far worse than hate…. And then you accuse another commentator who questioned the origin of your own very rabid and distasteful thought of being an abuser without knowing what that person is or his/her experience is regarding the topic the blogger has discussed here…..

          But the matter in your comment that is biggest laughter generator is your ignorance of the fact you are asking the blogger himself to not allow his post on his own blog. And then I can very well ask you about your experience of having a father or brother or the lack thereof in your life, but I will refrain from doing that, as I have encountered the situation umpteen times, when rising feminism meter in female and/or homo sapiens easily reduces father or brother like figures to zero……

          The above things kept aside, let me point out another pet approach of feminist that you have exhibited…. You chose to attach and associate with another commentator who you though has views similar to yours and replied on his comment, but targeting blogger and me for our comments. And then yet again you played the victim card without being anywhere close to any kind of victim and demand larger group (this website) to disallow the blogger’s post and comments by accusing them of nothing but baseless and without merit allegations of being duck-faced and abusive…..

          “Disrespectful” — LOL — Do you even know the meaning of that ??

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  9. instead of understanding what actually happens in a girls life what everyone does is make her responsible for it and encourage hooking up, break up culture in India. thank you for your wonderful suggestion which will help our society awesomely. we were only waiting for such awesome support to have free sex! what a thinking!! u must be shameless! u don’t even deserve hatred. u are worst than that.

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        • If the guy is rich and agrees to marriage then there is no problem. Prostitution is female nature. Why not make it a honest transaction then? Girls arent meant to be used but she will gladly use men for favours and alimony.

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    • Who do you think is encouraging hooking up, break-up culture in India. This blogger or, the feminism infested minds of people like you, media personnel and law makers and officers of law (lawyers and others….) who would lick feminist feet any given days for votes ??? And despite this, I don’t have the word ‘hatred’ in my lexicon, unlike the female of the species, who use it so often now-a-days that make me wonder, whether they know the meaning of the word or are they using it wreak vengeance against their creators (parents) because of their feminist belief that all heterosexual encounter is equivalent to rape (thus, their own existence is product of rape, and misogyny because father didn’t transfer his “Y” Chromosome……)……

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      • @exploradven, do NOT bother to reply to this kind of weak, inferior, low-esteemed, entitled and smelly c***s ! Strange enough, they even have no respect & gratitude that 99.99% of the Amenities, Facilities, Things, Utilities, Science, Medicine, Technology etc. are INVENTED, INNOVATED and DISCOVERED by MEN (including the “keyboard” and “mouse” these f*****g morons use !!!).

        MASCULINITY & MACHISMO

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  10. This is in response to the Pathetic, Parasitic, Weak, Inferior, Coward smelly c**t who commented about Me and Partha (Partha posted the Tweet on his page). I CAN comment in a more insulting, humiliating, harsh, belittling and “*******” way but NO, I won’t.

    I only want to REMIND you that you have used the: Infrastructure, Transport, Science, Technology, Devices and Amenities that are Invented, Innovated, Discovered and Pioneered by MEN (including Toilet paper you use to Wipe your a** h**e !!!). For your information, below is the “minimal list”:

    Power/Current/Electricity, Generator, Transmission/Vehicles/Cars, Locomotives/Transport, Telephone/Communications, Firearms/Bullets/Guns/Rifles/Pistols, Engineering, Stove/Refrigeration/Miro-wave/Washing machine/Dryer/Dish washer/Vacuum cleaner, Camera/Lens/Bio-Scope/Telescope, Medicine, Surgery, Diagnostics (X-Ray etc.), Computers, Typewriter, Keyboard, Mouse, Press/Printer, Xerox/Photo Copying/Scanner, Web/Internet/Router/Modem/USB/Bluetooth, Television, Watch/Clock/Batteries, Fans/Air-Conditioner, Martial Arts/Karate, Radio/Tape Recorder/VHS/CD/DVD/Blue-Ray, Musical Instruments, Mathematics, Physics/Chemistry/Botany/ Zoology/Geography, Sewing Machine, Aeronautical, Shoes, Cigarettes/Matches/Lighter, Plastic/Couch/Sofa/Blinds, Whiteboard, Markers/Crayons, Sewage System, Tampon, Gynecology( !!!), Toilet paper !!! … Oh My GOD, the list doesn’t seem to end …

    Last but NOT LEAST; You are such a MORON that you can’t even recognize that whatever you said about Me and Partha, actually APPLIES to you. YES, you are speaking of yourself. YES, you are talking about your Mother !!!

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    • here the topic is about consensual sex on promise of marriage is not rape! i am talking about men who have cheated woman and not the entire men race for your kind info! there are men who respect and care for woman and stand through difficulties! Anyway I feel it is wrong cheating woman after physical relationship. Men make laws to suit their desires. IF a woman din bring male child in this world i am not sure if these inventions was even possible! If u don agree its cool #ephub. Only if u were born a girl and faced this situation , faced the pain i am sure u wouldn’t have commented so vulgarly. i am sure u are not born to one father now!

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  11. The learned advocate must learn that any progressive society needs advance interpretation of laws as per the circumstances of each case and the judges of Supreme Court play a vital roll in setting precedents for other courts. The Supreme Court precedents as as good as laws and that needs no rectification of cabinet or parliament. Mostly S.C sets precedents to handle latest and drastic situations of society and later on such precedents become law by the proper process of approval that might absorb some 3-4 years.

    IPC 1860 was laid down years back and therefore with the advancement of society the laws needs to be interpreted as per the circumstance those exist in the society. This is the basic morale of Indian Penal Code when it comes to defining Sec.375 states rape as a sexual intercourse against will or consent of the women, now to give a fair interpretation to Sec 375, we need to comprehend Sec 90 that defines Consent. If we read Sec 90- Consent obtained by misconception of fact is not a free consent and therefore if a consent of a women is obtained by misconception of fact of marriage at the future date, her consent for sexual intercourse is not her free will and thus has to be covered under Sec 375.

    The learned advocate has given a beautiful example to explain the term mis-representation of fact or misconception of fact as per him if a man who indulges in sex with a women and has grey hair in reality and at the time of intercourse has coloured his hair and at a later stage women realises that this was mis-representation in such cases whether the act amounts to rape or not? The answer is simple here the act of sexual intercourse was not supported by promise of marriage and in such cases this colouring of hair amounts to deceiving and Sec 420 is applicable.

    However incase the man indulges with a women under promise of marriage and the girl enters into a relationship with deception in such cases courts have to analyse both the situations:
    1) Whether the boy had any intent of marriage?

    a) In cases where a boy has intent of marriage however he failed to fulfil that promise of marriage at a later stage due to circumstances, he is not covered under IPC 375 and many precedents support this view like Uday vs State of Karnataka, Dilip Singh vs State of Bihar.

    2) Whether boy had no intent of marriage from beginning and just use marriage as a tool for sexual intercourse with a women?

    a) In such cases courts have to understand whether a girl was interested in establishing sexual intercourse with any man roaming in the road or whether she has any choice or whether she is a prostitute who establishes sexual relations with free will.

    ………Its a matter of shame that such senior advocates are so poor in interpreting judgements of supreme court. S.C courts have specifically convicted accused in cases where the intent of accused was only to exploit innocent women in name of marriage. S.C understand that had the promise of marriage wouldn’t have been in place such women would not have indulged in the act of intercourse. Incases of advance society these days even in arrange marriages boys often prefer to establish relations and women may give consent to sexual intercourse to protect interest of involved family members, to safeguard their future marriage and these things would have been different incase there would be a normal love relationship between individuals with no promise of marriage.

    Incase of rape cases involving false promise of marriages S.C has laid a clear precedents that each case has to be seen in its won merits. The objective of covering such cases under rape to safeguard larger interest of societies. With advancement of time, men or boys have become smart they don’t force women for sex because they know women are educated to report them, therefore they choose softer route and thus propose marriage and then use that as a tool to ratify their lust and in such cases courts need to stop this practise and safeguard the pious relationship of marriage that is soon becoming a tool in hands of men…

    Incase the learned advocate wishes to challenge he can give me the case no. and argue the matter in open S.C with me….

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  12. Worth Article, I wish all the #Judiciary to #GetWellSoon [MunnaBhai istyle] else a #MenWillBeOnWar for their rights and justice,

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