Deepak Gulati v. State of Haryana (2013)

This is the case on consent obtained by a promise of marriage. It draws the line a student is asked about again and again: a false promise made from the outset to procure submission vitiates consent and the act is rape, but a promise honestly made and later broken is not. It is the standard counterweight to the argument that every failed relationship followed by a complaint is a sexual offence.

The prosecutrix, nineteen years old and a senior-school student, had known the appellant for some time; he used to meet her outside her school. On 10 May 1995 she left home by arrangement to go with him to Kurukshetra to get married, and had obtained a certificate from her school as proof of her age. He was not at the agreed place, so she telephoned him on a number he had given her and waited for him from noon until half past one. When he came, they went to a lake at Karnal, where intercourse took place; she raised no objection and made no outcry. They went on to Kurukshetra and stayed with his relatives for three or four days, during which intercourse continued, the appellant putting off the marriage on one pretext or another. She was then turned out.

She went to a university hostel and stayed there without permission; the warden became suspicious, questioned her, and her family was informed. She left, went to a temple, met the appellant again, and agreed once more to go with him to Ambala to marry in court. At the bus stand they were found by her father and the police, and he was arrested.

Her father's complaint had been registered as one of enticement and wrongful confinement and was later converted to one of rape. The Sessions Court convicted the appellant and the High Court affirmed: three years for the kidnapping offence and seven years for rape.

The conviction and sentences were set aside and the appellant, who had already served more than three years, was given the benefit of doubt.

The undisputed facts were that she was nineteen; that she was inclined towards him and had willingly gone with him to get married; that he had been assuring her he would marry her; that the physical relationship had developed with her consent, there being neither resistance nor any complaint anywhere at any time although she lived with him for days and travelled with him from place to place; and that even after leaving the hostel she agreed to go with him to Ambala to marry. If she was in fact going to Ambala to marry him, the Court said it could not understand on what basis the allegation of a false promise was raised.

1. Start from the gravity of the offence, not from scepticism. The Court restates that rape is an assault on the body, mind and privacy of the victim; that a rape victim is by no means an accomplice and is placed on a higher footing than an injured witness; and that rape is a crime against the entire society.

1. Classify the consent. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. It is an act of reason accompanied by deliberation, the mind weighing the good and the evil on each side.

1. Distinguish a breach of promise from a false promise. There is a clear distinction between rape and consensual sex. The court must examine whether a false promise of marriage was made at an early stage, and whether the consent was given after fully understanding the nature and consequences of the act. Where a woman agrees out of love and passion, and not solely because of a misrepresentation, or where the man could not marry her because of circumstances he could not foresee or control although he fully intended to, the case must be treated differently. Conviction follows only if the court concludes that the accused's intention was mala fide and that he had clandestine motives.

1. Both limbs of the consent provision must be satisfied. The first limb looks at the victim — fear of injury or misconception of fact. The second looks at the accused — he too must know, or have reason to believe, that the consent was given in consequence of that fear or misconception. The requirements are cumulative.

1. The misconception must be immediate. A failure to keep a promise about a future uncertain date, for reasons not clear on the evidence, does not always amount to a misconception of fact; to come within that term the fact must have immediate relevance.

1. Weigh maturity. At nineteen she had adequate intelligence and maturity to understand the significance and morality of what she was consenting to, and she was capable of understanding the complications surrounding her marriage to him.

1. Test the story against the conduct. Her own account had her seeking him out, waiting for him, going with him, living with him for days without complaint, and finally setting off with him to court to be married. On that record there was no evidence to prove conclusively that he had never intended to marry her.

It opens any question on consent and misconception of fact. Set out the two-limb test and then apply the "from the very beginning" requirement: what matters is the intention at the time the promise was made, proved by the accused's conduct.

It disposes of the proposition that intercourse preceded by a promise of marriage is automatically rape once the marriage does not happen.

It does not decide that a woman's silence is consent in a case of force or confinement — the contrast with the decisions on submission under fear is exact, and an answer should hold the two lines together. Nor does it apply where the woman is below the protected age, since consent is then irrelevant. The provisions have since been replaced, so state the Sanhita position alongside.