Proposed IPC Bill with new clause on ‘false promise to marry’: What it says and how such cases been dealt thus far

However, the issue of false promises of marriage has often come up in courts and is currently dealt with under other sections of the IPC.

What does the new clause say on false promise to marry?

Clause 69 of the proposed bill states, “Whoever, by deceitful means or making by promise to marry to a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.”

It is followed by an explanation saying that “deceitful means” will include the false promise of employment or promotion, inducement or marrying after suppressing one’s identity.

What does “false promise to marry” mean, and did no law exist on it earlier?

Cases around this claim most often say that a women’s consent for sexual intercourse was taken by men with a promise to marry them later on, but that promise was not fulfilled. Therefore, that consent was made through a “false promise”, and hence the act should constitute rape, given the definition of the rape law.

IPC Section 375 defines what constitutes rape and it further lists seven types of consent that, if violated, would amount to rape. These include consent taken through intoxication, through fear of death or hurt; or when a man has sexual intercourse with a woman “without her consent.” It defines consent as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.”

Here, allegations of “false promise to marry” stem from a conjoint reading of Sections 375 and 90 of the IPC. Section 90 says that if the consent is given by a person under “fear of injury, or under a misconception of fact”, and if the person doing the act knows that the consent was given due to such fear or misconception, then that consent is invalid.

Courts have often deliberated on consent based on a “misconception of fact” and whether it would amount to rape under Section 375. In 2003, the Supreme Court considered this question in ‘Uday vs. State of Karnataka’ for the first time.

What have the courts said?

In ‘Uday vs. State of Karnataka’, the Court dealt with the case of a couple who engaged in sexual intercourse, following which the woman became pregnant. She alleged that the accused had promised to marry her and later lodged a complaint when the marriage did take place.

The court held that in such a case, a false promise to marry could not be construed as a misconception of fact, as the man and the woman were both aware that they would face opposition to the marriage from their families. Therefore, she gave consent to the act freely.

The court said, “She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations”.

The court laid down two conditions to be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent should have had reason to believe that the consent was given as a result of the misconception.

The court also said, “There is no straitjacket formula for determining whether consent given… to sexual intercourse is voluntary, or whether it is given under a misconception of fact.” It said that in each case the evidence before it must be considered, as well as the surrounding circumstances. It added that the burden is on the prosecution, the party that makes the allegations, to prove each and every ingredient of the offence, including the absence of consent.

The following year, in ‘Dileep Singh vs. State of Bihar’, the apex court acquitted a man convicted of the offences of rape by force and statutory rape. In this case, a man had sexual intercourse with his neighbour and then continued to have intercourse with her on later occasions on the promise of marriage, but did not marry her.

Setting aside the prior conviction and allowing his appeal, the court said, “We have no doubt that the accused did hold out the promise to marry her and that was the predominant reason for the victim girl to agree to the sexual intimacy with him”.

But it said there was no evidence to be sure that the accused had no intention to marry her at all, from the beginning. It termed the case one of breach of promise to marry rather than a case of false promise to marry. The court also held, “There can be no denial of the fact that the appellant did commit a breach of the promise to marry, for which the accused is prima facie accountable for damages under civil law.”

What is the difference between a false promise to marry & breach of promise?

In 2019, a Division Bench of Justice DY Chandrachud and Justice Indira Bannerjee of the apex court ruled in ‘Pramod Suryabhan Pawar vs. State of Maharashtra’ that there is a distinction.

It said that where the promise to marry is false, and the intention of the maker at the time was not to abide by it from the beginning itself, but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent”. Meanwhile, a breach of a promise itself cannot be said to be a false promise, the court said. It observed that there is a distinction between a “false promise, given on the understanding by its maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled”.

Thereafter, in ‘Sonu alias Subhash Kumar vs. State of UP and Another’ in 2021, the top court relied on its 2019 ruling and summarised the legal position by saying that a woman’s consent with respect to Section 375 “must involve an active and reasoned deliberation towards the proposed act”.

It said that to establish whether the “consent” was vitiated by a “misconception of fact”, two ingredients must be fulfilled. First, the promise of marriage must be false, made in bad faith, and with no intention of being fulfilled. Secondly, the false promise should be immediately relevant or bear a direct nexus to the woman’s decision to engage in sex.

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More recently, on January 30, the apex court in ‘Naim Ahmad vs. State’ said that every breach of promise to marry is not rape. “One cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise,” the court said.