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.
