Retrospective invalidation of consent to sex – a flawed position? [Column]

While there is no doubt that the offence of rape has to be viewed very seriously and no offender must be spared, it is equally important to ensure that no consensual sex is misconstrued as rape except on grounds explicitly mentioned in the provisions themselves. However, the settled position of the law does not exactly adopt this view, which gives rise to the logical concerns that we attempt to deliberate exclusively in matters where consensual sex is construed as rape when a false promise of marriage is made.

The settled position of law

In the case of Pramod Suryabhan Pawar vs. State of Maharashtra [(2019) 9 SCC 608 ] the following was held : “18 To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.”

In the above case, the Supreme court distinguishes between the inability to honour a promise and a false promise and states which one of the two amounts to a misconception of facts that will vitiate the consent as per Section 90 of the IPC.

Although the Supreme Court considers only a false promise of marriage for the charge of rape, our logical concern is whether even a false promise of marriage could convert consensual sex into rape.

Our logical concerns
When it comes to consensual sex, it is an act where two individuals indulge for the pleasure of it, where there is no loser or gainer. Section 375 of the IPC requires a consent that is unequivocal, and hence such an unequivocal consent must not be contingent on any consideration, be it a promise or anything else for that matter, and it must be limited to that specific act alone. In that sense, the unequivocal consent must be absolute consent without any strings attached. Having said that the unequivocal consent must be limited to that specific act, the settled position of the law attempts to exhume such unequivocal consent, revisit it after the fact, and make it open for removal.

The logical position should be that unequivocal consent for sex cannot be retrospectively altered on the ground of dishonouring the promise of marriage made at the time of such an act, and treat such consensual sex as rape. If an unequivocal consent for sex is given in return for a future promise of marriage, that will cause an act that is inherently personal and intimate to take the form of a contractual agreement, wherein the promise and consent will act as considerations for the involved individuals. Also, an unequivocal consent to sex involves various factors, of which the promise of marriage could be one. Hence, the promise of marriage alone cannot be the sole factor, and in a romantic relationship, it must be preceded by other factors like love and passion. If the prosecutrix claims that there existed no other factors other than the promise of marriage, then the relationship between the accused and the prosecutrix itself is questionable, and by extension, the expectation of marriage also becomes untenable.

The Supreme court in the Pramod Suryabhan Pawar case, has observed the following with respect to consent in matters of sex: “12.This Court has repeatedly held that consent with respect to Section 375 of the IPC nvolves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action. “

The Supreme Court clearly explains that the consent with respect to Section 375 of the IPC must be a reasoned one, given after considering the alternatives and the consequences. In that line, one of the very first consequences a reasonable person would think of when consenting to something based on a promise is whether the promise is false or not. So, even a false promise must fall within the purview of the consequences mentioned above.

Therefore, a false promise of marriage to obtain consent for sex may at most attract the offense of cheating, and not an offence as heinous as rape.

Column by Law Students Mr. Tennyson Samuel Pushparaj S and Mr. Arun Kumar A. Views are personal.

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