The Definition of Rape and a Promise to Marriage

Published Date: 25-Jun-2024 | 04:54 PM
news-banner

Sarjean Rahman Lian

 

The question regarding the definition of rape comes from section 375 of the Penal Code (PC) which mentions five following descriptions for the offence of rape if sexual intercourse has taken place there under:

Firstly. Against her will. Secondly. Without her consent.

Thirdly. With her consent, when her consent has been obtained by putting her in fear of death, or of hurt.

Fourthly. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly. With or without her consent, when she is under fourteen years of age.

It appears that there is no specific clause, section or sub section relating to the promise of marriage at a future date. We are of the view that Clause 2 of section 375 along with section 90 of the PC may be used to specify such events as rape. Under Section 90 of the PC, if consent is given under a misconception of fact, which would be considered as no consent.

Under Section 90 of the PC, it must be shown that the consent was given under a misconception of fact and it must be proved that the person who obtained the consent knew or had reason to believe that the consent was given in consequence of such misconception.

The misconception of fact in this case will be the misconception of the promise of future marriage. But the above-mentioned term has not been clarified by any courts of Bangladesh.

Under Section 9 of the Prevention of Oppression Against Women and Children Act 2000 the relevant provision is as follows:

Whoever has sexual intercourse without lawful marriage with a woman not being under fourteen years of age, against her will or with her consent obtained, by putting her in fear or by fraud……

Under the 2000 Act there is a new criterion which is fraud and as per Section 25 of the PC it means something done with intent to defraud. Defraud means an intention to deceive and by means of the deceit to obtain an advantage. When a person makes false promise to marry and obtains the consent of the woman, then it can be said that he has obtained the consent by fraud. Thereafter, he engages in sexual intercourse with the woman then such intercourse would be considered as rape under section 9(1) of the Prevention of Oppression Against Women and Children Act 2000.

In India, the courts treated consensual sexual intercourse as rape in certain circumstances, such as sexual intercourse based on false promise of marriage.

The test for consensual sexual intercourse: At first, the promise of marriage must be a false promise with no intention to fulfill the promise at the time it was given. Secondly, the false promise is having a direct link/connection with the decision of the woman to engage in the sexual intercourse.

The Courts in Bangladesh are unwilling to make a judicial precedent considering sexual intercourse with consent based on a promise to marry in future as rape. In Monwar Mallik v State, (2009), it is stated that it is evident from the evidence that the victim agreed to make sexual intercourse with the accused because the accused promised to marry her. But on this ground, he cannot be held guilty of rape. If an accused makes sexual intercourse with a girl above the age of 16 years with the consent of the girl, the accused will not be held guilty of rape for having sexual intercourse with the victim after having promised to marry her. In AH Azam Khan V Bangladesh, it was held that if a full-grown girl consents to the act of sexual intercourse on the promise of marriage and continues to indulge in such activity, until she becomes pregnant, it is an act of promiscuity on her part and such act cannot be described as rape. In Najim Uddin v State, the High Court stated that "only one party of the two contributing to the amicable act cannot be stamped to have committed an offence of rape. The act of the male partner does not attract the mischief of section 9(1) of the Ain 2000.

We are of the opinion that sexual intercourse with a woman on promise of marriage should not be treated as 'fraudulent act' or 'without consent' for the definition of rape. Such intercourse should be termed as consensual. Marriage should not be linked with the offence of rape. The element of consent must not be present for the offence of rape. Otherwise, such sexual intercourse (with consent) can be misused as a weapon for threatening the male partner or his family.

Rape is one of the most hateful crimes in our society and our laws must ensure to punish the rapists. Whether it is a marital rape or not and/or whether it is committed by male or female, should not be a factor to determine rape. The element for rape should be consent or no consent.

 

Sarjean Rahman Lian is a Barrister at Law and an Advocate of the Supreme Court of Bangladesh. He is also a Partner at FM Associates.


 

Leave Your Comments