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Sex on promise to marry will amount to rape only if it violates decisional autonomy of victim: Kerala High Court

The Court opined that the concept of consent of a woman on a promise to marry, was an “enigma for the prosecution to prove“, as it refers to the state of mind of both parties in a sexual act.

Moreover, since the IPC does not contemplate a gender neutral provision for rape, the Court will have to weigh the relative positions of the accused and the woman in terms of dominant subordinate roles.

It is to be remembered that the statutory provisions of the offence of rape as understood in the Indian Penal Code, is not gender neutral. A woman, on a false promise of marrying and having sexual relationship with a man, with the consent of the latter obtained on such false promise, cannot be punished for rape. However, a man on a false promise of marrying a woman and having sexual relationship with the woman would lead to the prosecution’s case of rape. The law, therefore, creates a fictitious assumption that the man is always in a position to dominate the will of the woman. The understanding of consent therefore, has to be related to the dominant and subordinate relationship in a sexual act,” the Court said.

Source: Barandbench

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