The blooming threat in an age of judicial consent

With different courts in the country interpreting that even consensual sex on the false promise of marriage constitutes rape, severing a romantic relationship can be risky for men

Published: 02nd July 2013 09:43 AM  |   Last Updated: 02nd July 2013 09:43 AM   |  A+A-

Just as the dust over the debate on the legal age of consent for sex has settled, the arrest of Coonoor Judicial Magistrate S Thangaraj on charges of rape for allegedly ditching his intimate uniformed girlfriend has triggered a fresh controversy in an age of judicial interpretation of the term “consent.”

Thangaraj was arrested on Saturday after his lover affair with a woman Sub Inspector went sour and the latter complained that he had physically exploited her on the false promise of marriage.

While a section of lawyers and judicial officers is expectedly angered over the arrest of one from their fraternity, such cases of ex-lovers being booked for “rape” is becoming common after some courts started interpreting sexual relationship on the “false promise of marriage” as consent granted due to “misconception of fact”.

Section 375 of the Indian Penal Code, which defines rape, says a man has committed rape if it was without the woman’s consent. Section 90 of the IPC says consent is not real, if it is given under a misconception of fact. Giving a combined reading of the two sections, the Supreme Court and various High Courts have ruled against men who have had sex with their lovers before deserting or parting ways.

Such legal interpretations of an intimate relationship continued to be tricky for a long time. In fact, the Patna High Court in 1990 had held if a woman had consented for sex, even on a false promise of marriage, the man can’t be booked for rape.

“Though the lady pave (sic) her consent due to the false promise of marriage, she knew what was being asked from her and what she was giving her consent for. Hence, there was no misconception of fact and Section 90, IPC has no application,” Justice R N Prasad held and ruled that the accused should be tried only on charges of cheating, not rape.

Until the early 90s courts mostly refused to accept a “false promise” as a “fact” and held that hence “misconception of fact” as defined by Sec 90 IPC cannot be invoked.

However, in later years the courts tended to take a more favourable stand towards women to prevent exploitation. In 2010, Justice V K Jain of the Delhi High court observed that not considering sexual relationship on a false promise as rape would lead to exploitation of women. “If this is allowed to happen, it will enable immoral and dishonest persons… to exploit girls… by alluring them with false promise of marriage,” the judgment read.

Similarly, Justices A Mathur and A Kabir of the Supreme Court had in 2006 ruled: “This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him.”

However, in 2003 while dealing with a case where a man had left his lover due to opposition from his family, an Apex Court bench comprising Justices N Santosh Hegde and B P Singh acquitted the man of rape charges holding that the man’s initial intention was not to cheat the woman.

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