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“Rape charges apply if consent given on false promise of marriage”
Lower courts cannot refuse to frame charges under Section 376 (rape) of the IPC just because the complainant had admitted that she consented for sexual intercourse because the accused promised to marry her, the Madras High Court Bench here has held.
Allowing a petition by a victim from Karaikudi in Sivaganga district, Justice P.R. Shivakumar set aside the order passed by a Principal District Munsif-cum-Judicial Magistrate stating that the alleged offence would attract only Section 417 (cheating) and not Section 376.
While Section 417 carries a maximum sentence of one year of imprisonment with or without fine, the minimum punishment under Section 376 is seven years' rigorous imprisonment. The maximum punishment can go up to life imprisonment.
The judge pointed out that Section 375, which defines rape, stated that the offence would be made out if it was committed against the will of the victim or without her consent or by obtaining her consent under the fear of hurt or by impersonation or by reason of unsound mind of the victim. The offence would be attracted with or without consent only in case of girls below 16 years of age.
A cursory reading of the Section would give an impression as if the offence of rape would not be made out if women above 16 years had consented for sexual intercourse. However, this would be erased if one read Section 375 along with Section 90, which stated: “A consent is not such a consent as is intended by any section of this code if the consent is given by a person under fear of injury, or under a misconception of fact.” Giving consent on the false promise of marriage amounted to misconception.
Whether the accused had made a false promise to marry the petitioner only with the intention of having sexual intercourse or whether his promise was genuine, which he could not keep up owing to other considerations, was a matter to be decided only during the course of trial.
Lower courts cannot refuse to frame charges under Section 376 (rape) of the IPC just because the complainant had admitted that she consented for sexual intercourse because the accused promised to marry her, the Madras High Court Bench here has held.
Allowing a petition by a victim from Karaikudi in Sivaganga district, Justice P.R. Shivakumar set aside the order passed by a Principal District Munsif-cum-Judicial Magistrate stating that the alleged offence would attract only Section 417 (cheating) and not Section 376.
While Section 417 carries a maximum sentence of one year of imprisonment with or without fine, the minimum punishment under Section 376 is seven years' rigorous imprisonment. The maximum punishment can go up to life imprisonment.
The judge pointed out that Section 375, which defines rape, stated that the offence would be made out if it was committed against the will of the victim or without her consent or by obtaining her consent under the fear of hurt or by impersonation or by reason of unsound mind of the victim. The offence would be attracted with or without consent only in case of girls below 16 years of age.
A cursory reading of the Section would give an impression as if the offence of rape would not be made out if women above 16 years had consented for sexual intercourse. However, this would be erased if one read Section 375 along with Section 90, which stated: “A consent is not such a consent as is intended by any section of this code if the consent is given by a person under fear of injury, or under a misconception of fact.” Giving consent on the false promise of marriage amounted to misconception.
Whether the accused had made a false promise to marry the petitioner only with the intention of having sexual intercourse or whether his promise was genuine, which he could not keep up owing to other considerations, was a matter to be decided only during the course of trial.
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