The term “rape” originates from a Latin term “rapere” which means “to snatch, to

grab or to carry off”. Further as per the Roman law “raptus” meant the carrying off
a woman by force, with or without intercourse. In India the offence of rape is a
serious menace and a challenge for the law enforcement agencies. Rape is the
fourth most common crime against women in India and according to the recent
report published by National Crime Records Bureau (NCRB) in 2021, a total of
31,677 rape cases were registered across the country that provides a daily average
of 86 rape cases per day.

Rape ingredients
The crux of the offence of rape under section 375, IPC is sexual intercourse by a
man with a woman against her will and without her consent under any one of the
six circumstances mentioned below. Thus, a woman cannot be liable for rape.
However, a woman can be liable for abatement of rape under section 109, IPC.
(i) Against her will,

(ii) Without her consent,

(iii) With consent obtained by putting her or any other person in whom she is
interested under fear of death or of hurt,

(iv) With consent but given under misconception of fact that the man was her
husband,

(v) Consent given by reason of unsoundness of mind, or under influence of

intoxication or any stupefying or unwholesome substance,

(vi) Women under eighteen with or without consent.

vii) When woman is unable to communicate consent.

Section 90 of the Penal Code, 1860 defines consent known to be given under
fear or misconception
90. Consent known to be given under fear or misconception.— A consent is not
such a consent as it 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, and if the
person doing the act knows, or has reason to believe, that the consent was
given in consequence of such fear or misconception; or
Consent of insane person.— if the consent is given by a person who, from
unsoundness of mind, or intoxication, is unable to understand the nature and
consequence of that to which he gives his consent; or
Consent of child.—unless the contrary appears from the context, if the consent
is given by a person who is under twelve years of age.
Thus, if a woman consents for a sexual act on the premise of false promise to
marry, her consent is said to be a consent that is given under misconception as
defined under Section 90 IPC and as such it will be considered as sexual act
without her consent and shall attract Section 375 IPC. In the recent times, the
courts are often faced with a situation where the women and the accused were in a
relationship and upon same turning sour, the prosecution under Sections 375/376 is
initiated against the accused. While the offence of rape merits a quick registration
of FIR and investigation, at the same time due care is required to ensure that the
process of law does not turn into a weapon to strike vendetta and vengeance that
shall have equally worst impact on the life and liberty of the accused.

Will and Consent –

Consent supposes three things-

1. a physical power to act,
2. a mental power of acting, and
3. a free and serious use of them
In Dileep Singh v State of Bihar, (2005) 1 SCC 88 [LNIND 2004 SC 1123]
(para 14), the Supreme Court observed that: though will and consent often
interlace and an act done against the will of the person can be said to be an act
done without consent. The Indian Penal Code categories these two expressions
under separate heads as comprehensive as possible

The difference between the two expressions have been explained by the Supreme
Court in State of Uttar Pradesh v Chottey Lal, (2011) 2 SCC 550 [LNIND 2011
SC 73], in the following words: Be that as it may, in our view, clause sixthly of
section 375, IPC is not attracted since the prosecutrix has been found to be above
16 years (although below 18 years). In the facts of the case what is crucial to be
considered is whether clause firstly or clause secondly of section 375, IPC is
attracted. The expressions “against her will” and “without her consent” may
overlap sometimes but surely the two expressions in clause firstly and clause
secondly have different connotation and dimension. The expression “against her
will” would ordinarily mean that the intercourse was done by a man with a woman
despite her resistance and opposition. On the other hand, the expression “without
her consent” would comprehend an act of reason accompanied by deliberation.

Independent Thought: Independent Thought v UOI, AIR 2017 SC 4904 ,999 per
Madan B Lokur J and Deepak K Gupta J, concurred Sexual intercourse with girl
below 18 years of age is rape regardless of whether she is married or not.
Exception creates unnecessary and artificial distinction between married girl child
and unmarried girl child and has no rational nexus with any unclear objective
sought to be achieved. Artificial distinction is arbitrary and discriminatory and is
definitely not in best interest of girl child. Artificial distinction is contrary to
philosophy and ethos of Article 15(3)1000 of Constitution as well as contrary of
Article 21 of Constitution and to the commitments in international conventions. It
is also contrary to philosophy behind some statutes, bodily integrity of girl child
and her reproductive choice.
Per Deepak Gupta, J (Concurring): Exception 2 to section 375 IPC insofar as it
relates to girl child below 18 years is liable to be struck down on following
grounds:—
(i) it is arbitrary, capricious, whimsical and violative of rights of girl child and not
fair, just and reasonable
and, therefore, violative of Articles 14, 15 and 21 of Constitution of India;
(ii) it is discriminatory and violative of Article 14 of Constitution of India; and
(iii) it is inconsistent with provisions of POSCO, protection of children from sexual
offences which must
prevail.
Absence of injury on male organ of accused Where a prosecutrix is a minor girl
suffering from pain due to ruptured hymen and bleeding vagina depicts same,
minor contradictions in her statements they are not of much value, also absence of
any injury on male organ of accused is no valid ground for innocence of accused,
conviction under section 375 IPC proper; Mohd Zuber Noor Mohammed
Changwadia v State of Gujarat, 1999 Cr LJ 3419 (Guj).
Penetration Mere absence of spermatozoa cannot cast a doubt on the correctness
of the prosecution case; Prithi Chand v State of Himachal Pradesh, (1989) Cr LJ
841 : AIR 1989 SC 702

Reputation of Women

The Court highlighted the value of reputation of woman by citing the following

observations made by the Apex Court in Shyam Narain v. State (NCT of Delhi),

"Respect for reputation of women in the society shows the basic civility of a

civilised society. No member of society can afford to conceive the idea that he can

create a hollow in the honour of a woman. Such thinking is not only lamentable but

also deplorable. It would not be an exaggeration to say that the thought of sullying

the physical frame of a woman is the demolition of the accepted civilised norm i.e.
'physical morality'. In such a sphere, impetuosity has no room. The youthful

excitement has no place. It should be paramount in everyone's mind that, on the

one hand, society as a whole cannot preach from the pulpit about social, economic

and political equality of the sexes and, on the other, some perverted members of

the same society dehumanise the woman by attacking her body and ruining her

chastity. It is an assault on the individuality and inherent dignity of a woman with

the mindset that she should be elegantly servile to men."

Is Promise to Marry the Victim a Misconception of Fact Vitiating her

Consent?
The Supreme Court in Deepak Gulati v. State of Haryana observed
21. … There is a clear distinction between rape and consensual sex and in a case
like this, the court must very carefully examine whether the accused had actually
wanted to marry the victim, or had mala fide motives, and had made a false
promise to this effect only to satisfy his lust, as the latter falls within the ambit of
cheating or deception. There is a distinction between the mere breach of a promise,
and not fulfilling a false promise. Thus, the court must examine whether there was
made, at an early stage a false promise of marriage by the accused; and whether the
consent involved was given after wholly understanding the nature and
consequences of sexual indulgence. There may be a case where the prosecutrix
agrees to have sexual intercourse on account of her love and passion for the
accused, and not solely on account of misrepresentation made to her by the
accused, or where an accused on account of circumstances which he could not
have foreseen, or which were beyond his control, was unable to marry her, despite
having every intention to do so.
The Supreme Court in Uday v. State of Karnataka2, wherein the Supreme
Court observed as under:
23. Keeping in view the approach that the court must adopt in such cases, we shall
now proceed to consider the evidence-on-record. In the instant case, the
prosecutrix was a grown-up girl studying in a college. She was deeply in love with
the appellant. She was, however, aware of the fact that since they belonged to
different castes, marriage was not possible. In any event the proposal for their
marriage was bound to be seriously opposed by their family members. She admits
having told so to the appellant when he proposed to her the first time. She had
sufficient intelligence to understand the significance and moral quality of the act
she was consenting to. That is why she kept it a secret as long as she could. Despite
this, she did not resist the overtures of the appellant, and in fact succumbed to
them. She thus freely exercised a choice between resistance and assent. 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. All these circumstances lead us to the conclusion that she freely,
voluntarily and consciously consented to having sexual intercourse with the
appellant, and her consent was not in consequence of any misconception of fact.

False accusations of rape

The Delhi Court recently observed the alarming surge of frivolous registration
of rape cases and has made very serious observation in Vimlesh
Agnihotri v. State reported in High Court of Delhi wherein it was observed as
under:

18. Therefore, people who make such false allegations of rape cannot be
permitted to go scot-free. This Court is pained to note that there is an
alarming increase of false cases of rape and offences under Sections 354,
354-A, 354-B, 354-C and 354-D only to arm-twist the accused and make
them succumb to the demands of the complainant, the order highlighted-

Furthermore, the Court also observed that:

20. … Unless wrongdoers are not made to face the consequences of their
actions, it would be difficult to prevent such frivolous litigations. The
courts have to ensure that there is no incentive or motive for frivolous
litigations which unnecessarily consumes the court’s otherwise scarce time.
This Court is of the opinion that this problem can be solved, or at least
minimised, to a certain extent, if exemplary cost is imposed on the litigants
for instituting frivolous litigations.
The Subtle Difference between False Promise to Marry and Breach of
Promise to Marry

If a full-grown 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.
Section 90 of the IPC cannot be put in service to pardon the act of the girl and
fasten criminal liability on the perpetrator, unless the court can be assured that
from the very inception the accused never really intended to marry her. (Jayanti
Rani v State of West Bengal, (1984) Cr LJ 1535 (Cal); Maran Chandra Paul v
State of Tripura, (1997) Cr LJ 715 (Gau); Sudhamay Naik @ Bachhu v State
of West Bengal, (1999) Cr LJ 4482 (Cal); Abhoy Pradhan v State of West
Bengal, (1999) Cr LJ 3534 (Cal);)
Consent given by the prosecutrix to sexual intercourse with a person with whom
she is deeply in love on a promise that he would marry her on a later date cannot
be said to be given under a misconception of fact. (Uday v State of Karnataka,
(2003) Cr LJ 1539 (SC); Dhruvaram Murlidhar Sonar v State of
Maharashtra, AIR 2019 SC 327 : 2019 (1) Scale 64.)
Sexual intercourse with a girl above sixteen years, who voluntarily agrees for
sexual intercourse on assurance of marriage, does not amount to rape. (Hari Majhi
v State of West Bengal, (1990) Cr LJ 650 (Cal); MC Prasannam v State,
(1999) Cr LJ 998 (Cal); Araj Sk v State of West Bengal, (2001) Cr LJ 416
(Cal).)
Sexual intercourse with a graduate, who is aware that the appellant is already
married but is willing to start a home with him, cannot be said that the consent is
obtained by fraud. ( Deepak Gulati v State of Haryana, AIR 2013 SC 2071)
A deliberate representation by the accused with a view to eliciting the assent of his
victim without having any intention or inclination to marry her vitiates the consent.
Hence, consent for sexual intercourse induced by the promise of marriage is not
true consent, if it is proved that the accused from the very inception of making the
promise had no intention to marry her. (Anurag Soni v State of Chhattisgarh,
AIE 2019 SC 1857 : 2019 (6) Scale 211.)
If his promise to marry is not false and has not been made with the sole intention to
seduce the prosecutrix to indulge in sexual acts, the sexual acts premised on such
consent do not amount to non-consensual. (Deelip Singh @ Dilip Kumar v State
of Bihar, (2005) 1 SCC 88 [LNIND 2004 SC 1123]; Pradeep Kumar @
Pradeep Kumar Verma v State of Bihar, (2007) 7 SCC 413 [LNIND 2007 SC
965]; Yedla Srinivas Rao v State of Andhra Pradesh, (2006) 11 SCC 615
[LNIND 2006 SC 785] : 2006 (9) Scale 692 [LNIND 2006 SC 785]; Kaini Rajan
v State of Kerala, (2013) 9 SCC 113 [LNIND 2013 SC 830] : (2013) Cr LJ 4888
(SC)
Mere breach of promise to marry without mala fide intention, however, does not
amount to deception. ( Deepak Gulati v State of Haryana, AIR 2013 SC 2071
[LNIND 2013 SC 533]: (2013) 7 SCC 675 [LNIND 2013 SC 533] : (2013) Cr LJ
2990 (SC); Tilak Raj v State of Himachal Pradesh, AIR 2016 SC 406
[LNINDU 2016 SC 3]: (2016) Cr LJ 1136 (SC) : (2016) 4 SCC 140 [LNINDU
2016 SC 3])
Invasion of person of prosecutrix, by indulging in sexual intercourse with her on a
false promise of marriage, in order to appease his lust, all the time knowing that he
would not marry her, is an act of braze fraud on his part. The consent obtained on
such a promise is not a valid consent in law. ( State of Uttar Pradesh v Naushad,
AIR 2014 SC 384 [LNINDU 2013 SC 34]: (2014) Cr LJ 1540 (SC). A woman’s
body is not a man’s plaything and he cannot take advantage of it in order to
satisfy his lust and desires by fooling a woman into consenting to sexual
intercourse simply because he wants to indulge in it. The accused commits a
vile act of rape and deserves to be suitably punished for it.)
A case of a married man, who enacts remarriage with another woman, without
disclosing the fact of his earlier marriage, in a holy place and continues living with
her as her husband and cohabits with her, falls under fourthly of section 375. In
such a situation, the essence of the clause, i.e. the man knows that he is not her
husband and the woman has been consenting for sexual intercourse believing that
he is her husband, is met with. Such a sexual intercourse becomes non-consensual
and it amounts to rape (Bhupinder Sing v Union Territory of Chandigarh,
(2008) 8 SCC 531 [LNIND 2008 SC 1375] : (2008) Cr LJ 3546 (SC). But see
Vinod Kumar v State of Kerala, (2014) Cr LJ 2360 (SC) : (2014) 5 SCC 678
[LNIND 2014 SC 339])
A promise to marry after non-consensual sexual intercourse, however, does not
absolve the perpetrator from liability. His subsequent promise to marry is of no
consequence. (Yedla Srinivas Rao v State of Andhra Pradesh, (2006) 11 SCC
615 [LNIND 2006 SC 785] : 2006 (9) Scale 692 [LNIND 2006 SC 785]; Karthi
v State, (2013) 12 SCC 710 [LNIND 2013 SC 570])