Pakistan Penal Code on
False Promise of Marriage
The Pakistan Penal Code, 1860, describes rape as a cognizable offence with death or imprisonment up to twenty-five years as penalty. In view of section 375 of the Code, a man is found guilty if his conduct falls into one of the five prescribed categories such that he engages in sexual conduct without a woman’s will, consent, in presence of her fear of death or injury, knowing the effects of his presence to be her husband or knowing she is a minor under sixteen. For liability, the actus reus [the wrongful act that makes up the physical action of a crime] is the slightest, partial or full penetration and physical contact of male genital organs with those of female, such as clitoris, vulva, labia-majora or vagina to constitute rape while the mens rea is the penetration without a woman’s will, consent, in fear of harm, under deception or with a minor. The literal reading of section does not explicitly cover ‘false promise of marriage’. The silence necessitates discussion on judicial precedents.
The starting point is Imran v State. In this case, the victim was Anita and the defendant was Imran. They knew each other for some time and one day she eloped with him on a motorcycle. The defendant took her to a room and made out love to her. Later on, he took her to his sister-in-law’s house and pressurized her to marry him off which she refused. The matter went to the Sindh High Court with the question whether the submission of the defendant that she had consented was worthy of a defense. To begin with, it emphasized the difference between will and consent. It described will as a psychological state of mind signifying internal resistance or lack of mental preparation. Its common instances are intercourse under resistance or trickery. It defined consent as a conscious choice signifying a woman’s awareness of the nature of the act and its consequences on her life. Although it is easier to presume that her consent covered her mental preparation, yet one must not lose sight that if the consent was obtained through deceitful means such as past love and/or friendship, then the presumption of mental acquiescence is rebutted. This is so because one can comfortably choose to mate with someone who is honest but the same cannot be said of a dishonest person. Logically, it is quite hard to imagine a woman giving in to a dishonest man or on with mala fide intentions.
The Court observed that it was hard to presume that Anita had validly given her consent when the defendant was taking advantage of their friendship. It is a fact of life that every human relation begins with trust as once commented by George MacDonald, “To be trusted is a greater compliment than being loved.” If the element of trust is excluded, it is irrational to call it a friendship or love. Since the defendant misrepresented his intentions to build trust, he could not be allowed to walk away scot-free. Had she known that the friendship was intended to rob her of her virginity, it is most likely that she would have never befriended him, let alone consenting to sexual intercourse. Therefore, it was held that the consent was vitiated under s.90 and the defendant was liable under s.375. This shows that the consent given under misconception is not valid. After all, an invalid consent is equivalent to no consent at all.
On this pretext, one may ask if consent obtained through false promise of marriage is within the ambit of s.375. Apparently, there are no hard and fast rules and much comes down to whether she was or not aware of the false promise of marriage made by a man. Generally speaking, if it is a major, capable and experienced woman, she is expected to be rational enough to differentiate between trickery and genuine love because of her social know-how. And her failure to be cautious and vigilant enough can give the defendant the benefit of doubt because he can always make an excuse that as an informed woman, she knew about the act and its consequences. But if she is a major, unqualified and inexperienced woman, she cannot be reasonably expected to tell honest from dishonest person because she has least exposure to social life that might have informed her about the many ways in which women are tricked. And her failure to be vigilant cannot give the defendant the benefit of the doubt. Either way, the defendant must take her as he finds her. If she is outgoing, he should not always expect her to be emotionally intelligent. Conversely, if she is naïve, he must not expect her to be sharper. Instead, as a reasonable man, he must avoid contact or conduct that can lead to exploitation of her position.
Besides whether she is informed or not, the reason she befriends, loves or makes loves to a man is because she trusts him. Therefore, what is more important is her reason for considering him truthful. Organically, her sense of trust comes from her belief that someone she knows as friend or lover cannot be harmful, let alone being her rapist. Therefore, the conviction of the defendant must depend on the reasonableness of her belief. There are two factors that are assistive here. One is the duration of their friendship and/or love, and the other is the assurances given to her. The longer the two are, the greater are his chances for conviction. On this logic, the false promise of marriage will turn on liability only if the man knew the woman for some time and had made clear, unconditional and repeated assurances about marrying her. In situations where they knew each only briefly such that they had talked to each other a few times and he had taken her out to dinners but had not made unequivocal promise about marrying her, it could be presumed that the women could foresee dishonesty and still choose to take the risk of talking to, dining with and trusting him. In such a situation, it would be reasonable for the defendant to presume that she understood they were not going to marry, still she continued to like, love or trust him and freely consented to hang out with him even if that meant making love.
Apparently, the Code is silent about the constitutive elements of a valid consent. Instead, it sheds light on the factors that can play part to vitiate it. Typically, consent is considered invalid if it is given under fear of injury, misconception of fact, without consciousness. Closer home, there are no reported cases and we are left with Indian judgements.
The first case at hand is Deepak Gulati v State. In this case, the Supreme Court of India went on to lay down the circumstances that amounted to valid consent to avoid conviction under s.375. The brief facts were that the defendant and victim were nineteen years of age. They had known each other for some months. The defendant had been meeting her outside her school in an attempt to develop intimate relationship with her. He persuaded her to go with him to Kurukshetra to get married to which she agreed. On their way, he took her to a lake and made love to her. Afterwards, he took her to Kurukshetra, stayed there with his relatives for four days and kept mating her. Later, he kicked her out and she ended up in a hostel where she stayed for a few days. The hostel warden, who was suspicious of her, got her to speak her heart out and reached out to her father. Meanwhile, she left the hostel and went to a temple where she met him again. The defendant got her around for going to Ambala for marriage. But as they got to the bus stand, the defendant was arrested by the police that her father had brought.
There were two questions before the Court.
1. Did she give free consent?
2. Could it afford the defendant a defense?
For the first one, it was important to keep in check the intentions of the defendant. To this end, it was important to take into account the victim’s understandability. In the eyes of the Court, firstly, the intention of the defendant was bona fide because he intended to marry her. Secondly, the victim appreciated the act and its consequences because she went to his relatives’ house despite their sexual intimation. Hence, the victim had given free consent and the defendant was found innocent.
Apparently, the Court missed the point that the defendant never kept his word; rather, he kept on lingering it even though there was no family resistance or pressure on him. In such circumstances, it was hard for the victim to forebode that the promise was a forge. Much more, the misrepresentation was so puissant that it never put a shadow of doubt on his words. So much so that she did not resist the act by calling out for help at the lake and went with him to his relatives’ house. Also, if the defendant argued that his intentions were bona fide because he wanted to marry her when he mated her by the lake, it is hard to imagine she would call out for help against someone who was going to tie the knot. Moreover, the Court mistakenly presumed that she understood or should have understood the stigma attached with illicit sex when she stayed at his relatives’ house. It might have mattered had she believed him to be dishonest. It appears she realized his dishonesty after he kicked her out of the house. As a getaway from social embarrassment, she chose to go with him again. For her, marrying him was a lesser evil than going back to her parents or even reporting to the police. Therefore, her new choice was neither a token of his innocence neither a denial of her harm. At best, it was acceptance of the erstwhile and ensuing harm. Unfortunately, the Court did a miscarriage of justice by equating fear of stigma with free choice and letting him go scot-free.
Notably there is only one situation where conviction is mostly confirmed. In Srinivasa Rao v State of A.P, both the defendant and the victim used to attend cooking classes at the victim’s house. When her family was away, the defendant would make a false promise of marriage to sleep with her. Meanwhile, the victim turned out expecting and insisted on marriage which he refused. Both of their families were informed and the matter was taken to a Panchayat where he agreed to marry her, but absconded later on. The Court found him guilty because from the beginning, he did not intend to marry her. In this manner, it set a precedent to look out for the intentions of the defendant from the beginning.
In conclusion, the false promise of marriage is a missed out category in the Pakistan Penal Code, 1860, and the strong stigma around it is holding it back from being reported in Pakistan, making it even more difficult to resolve the issue. As a last resort, Indian judgements carry persuasive value and some insights into how it should be tackled in our courts.
The writer is a student of LLB at Pakistan College of Law, Lahore