Advocate K.V.Dhananjay argues here that a number of judges, including judges of the Supreme Court, have invented or imagined a crime that simply does not exist in the penal statute at all; these judges have been ignorantly punishing young men who have had sex with a woman on a false promise of marrying later by convicting these men on a charge of ‘rape’. Dhananjay argues that there is no such crime in the Indian Penal Code or any other penal statute in this country. He says that in a significant number of such cases, judges have been awarding severe punishment to the convicts for the commission of a crime that merely exists in the judges’ imagination and nowhere else. In the process, young lives are destroyed. He asks here for the coming together of concerned people from across the country and the world for the creation of an ‘innocence project’ to legally reopen all such cases so that such disastrous wrongful convictions could be reversed and our collective moral conscience regained thereby.

A year ago, I wrote to the Hon’ble Law Minister of India. The following is that letter. I wish that we had a more caring and an intelligent person as our Law Minister. The content of the letter is self-explanatory. Please take time to read it. Do spread the word so that more people could come together to create an ‘Innocence Project’ to free people that we talk about here. I did wait for one year to find out if our Law Minister is a man of conscience or learning. He isn’t. So, we are here and we must act.

Date: 10-Mar-2015

To

The Hon’ble Law Minister

Sri Sadananda Gowda

Government of India

Shastri Bhawan

New Delhi 110 001

Sub: Men are being wrongfully, unlawfully and unconstitutionally charged and convicted by the courts of India on the theory that when a man engages in a purely consensual intercourse with a woman on the pretext of marrying her in the future but had no intention of marrying her at all and would not marry her afterwards, his future refusal would convert a consensual intercourse into a rape in the future. There is an urgent need for the Government to reopen all such convictions of men – men who were convicted on the wholly unlawful and unconstitutional charge of intercourse with a woman on the false pretext of marriage. This judge-invented theory of rape has no sanction under the Indian Penal Code, 1860 and is therefore, wholly unlawful and unconstitutional.

Inviting your attention to a grave miscarriage of justice across the courts of India – courts in India have been wrongly and without any lawful justification convicting men on a purely judge-invented theory of consensual-intercourse-becomes-rape-afterwards wherein a consensual intercourse with a woman is deemed by a judge to constitute ‘rape’ if the judge speculates or is satisfied that the consent was given by the woman in the expectation of the man taking her in marriage after the intercourse but no marriage takes place as expected or promised. And, the Indian Penal Code, 1860 nowhere says that an intercourse that is perfectly consensual when it took place would somehow become a rape at a future point of time purely based on the occurrence of one or more future events. Such a judge-made law is both illegal and unconstitutional and deserves to be reversed by reopening all concluded convictions, by terminating pending trials and by withdrawing police investigations that have been taken in the name of this purely judge invented theory of consensual-intercourse-becomes-rape-afterwards that has no sanction under the Indian Penal Code or the Constitution of India.

Sir

My name is K.V.Dhananjay. I practice at a few courts including the Supreme Court of India.

Of all the evil that currently troubles humanity, a ‘rape’ should count as the most heinous of all known evil and horror. Period.

However, I write here to point out that when a girl above the age of consent agrees to have an intercourse with a male on the condition that they both will marry each other someday in the future, that intercourse does not and cannot be termed as a ‘rape’ at all if no such marriage takes place later. Increasing rates of conviction and imprisonment of men who have had sex on the promise of a marriage that did not materialize later has truly led to a massive miscarriage of the criminal justice system in this country.

For a better conceptual understanding of the issues that I discuss here, I have ignored the amendments made to the Indian Penal Code, 1860 by the Criminal Law (Amendment) Act, 2013.

In the past decade, there has been an explosion in the number of police cases wherein rape charges were fastened on men on the ground that the woman had consented to intercourse on the false pretext of marriage – a marriage that did not materialize later. This is quite worrying not so much because a large number of such cases have led to conviction and imprisonment but because all of those cases start and end with a purely judge invented theory that has no basis in any penal statute. Let us call this theory as a “consensual-intercourse-becomes-rape-afterwards” theory in the rest of this document. All such convictions also rest on misinformed moral outrage and ignorance of the tradition and cultural values of this country.

Section 375 of the Indian Penal Code, 1860 (referred to hereinafter as ‘IPC’, for short) defines a ‘rape’. It speaks of several instances when a man is said to have committed ‘rape’ of a woman. In general terms, whenever an intercourse takes place against the ‘will’ of a woman or without her ‘consent’, that man is said to have committed ‘rape’ of that woman. The punishment ranges from a minimum of seven years to life imprisonment. So, ‘consent’ is the word that we must pay greater attention to. A rape case is registered under Section 376 of the IPC and this provision prescribes punishment for rape cases.

Before we get into this branch of the law, we could take note of the cultural and traditional attitudes towards sex before marriage in this country to evaluate the ‘public policy’ component in this judge invented theory of rape. So, whether the scriptures or the tradition of this country advocate sex before marriage? One could spend a great deal of time poring over all the scriptures, shastras and other religious doctrines that have originated in this country and fail to see any sanction anywhere therein for sex before marriage or one could simply and effortlessly state now that the tradition and culture of this country have never sanctioned sex before marriage. One would have said the correct thing in both cases. So, this judge invented theory of rape cannot be said to promote any traditional or cultural value either.

Having just said that there was simply no cultural sanction in this country for sex before marriage, one must wonder, if he would agree with the assessment here, on how our courts came to invent this theory by impliedly declaring that sex before marriage is not all that bad so long as the male keeps the promise of marriage later. Some may object to such an inference by saying that our courts have merely indicated that an intercourse on the pretext of marriage is a rape if no marriage takes place later and saying as much is not really a sanction for sex before marriage. Well, the obvious response to any such objection would be that the fundamental basis behind a judicial-criminalizing of such an intercourse taken in the name of a future marriage can only be an unexpressed but a culturally flawed indignation that an intercourse taken in the name of a future marriage is perfectly fine in a society if only a marriage takes place later on that intercourse - a view that does not find any sanction in the tradition of this country.

We will now come to the truly important part: criminal laws may only be codified and laid down by our Parliament or the State Legislatures and these bodies never made any law that actually says that an intercourse by a male with a woman on the pretext of marriage should be treated as a rape later if no marriage takes place afterwards.

Before we proceed further, it is pertinent to note that the primary audience for general criminal laws is not lawyers, scholars or judges. It is the lay people and ordinary folks. So, a basic rule of interpreting all criminal laws that deal with general societal evils is that the meaning that would resonate with a lay person is the meaning that the words in a criminal law will draw from the courts. The next rule of interpretation of criminal laws is that courts will strictly go by what has been expressed in the law and will not go by the intention of the lawmaker or the society’s sentiment if those intention and sentiments have not been expressed anywhere in the law itself in clear words. Therefore, if the lawmakers had wanted and had thought that they were signing on a law that had said that it would be an offence to steal, say, a ‘horse’ but they were actually and mistakenly signing on a law that had said that it would be an offence to steal some other animal, say, a ‘donkey’, no court or policeman would think twice before charging a person who steals a ‘donkey’ thereafter – the argument that the lawmakers had made a mistake; that they had one thing in mind but had legislated a very different thing altogether will fully fail in such a scenario. Courts or the police will not bother about the intention of the lawmakers in the context of criminal laws; they will only look at the actual words in the criminal statute. And, if two reasonable interpretations would be possible on whether a given act fits the definition of a crime, the courts would ordinarily attach that meaning which is favourable to the accused. Now, why is this so? Well, the language of a criminal statute should be strictly construed and it means that whether an act would fit within the definition of a crime is to be readily ascertained by reference to the actual language employed in the statute itself; if there be opposing views on whether the act in question is even a crime, such law in doubt cannot be deemed to have given a clear and firm notice of its intent to punish the wrongdoer. Finally, law and morality are quite different and distinct and not every morally repugnant act in a society is readily prohibited by the criminal statutes in force; a judge is wholly permitted to lament and express moral outrage at the act brought before him but he is not authorised to pervert the language of a criminal statute in order to artificially apply that criminal statute to the legally-not-prohibited immoral act in question. And, no provision in a penal statute should be so read as to make a host of other provisions in that very penal statute to lose all of their meaning, place and purpose.

Let me start by reminding here that the judges who went on to convict men on the deeply flawed consensual-intercourse-becomes-rape-afterwards theory must have had only one thing in mind – to do justice to the victim who would not have consented at all to the intercourse had only she known enough. Let us now look at the very words of the IPC:

Section 375. Rape.—A man is said to commit “rape,” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—

First — Against her will.

Secondly —Without her consent.

Thirdly — With her consent, when her consent has been obtained by putting her or any person in whom she is interested 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 her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly — With or without her consent, when she is under sixteen years of age.

Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

As may be seen from the above, it is plainly clear that only the fourth circumstance appended to Section 375 of the IPC speaks of what may be called as ‘intercourse by deception’. That is, where a man falsely holds out himself as the husband of a woman and that woman is deceived into believing that the deceiving man is her husband when in fact, he is some other person and on the strength of that belief, though mistaken and induced by deception, that married woman agrees to an intercourse with the deceiver. Is there consent to an intercourse even in such a case? Well, there indeed is consent as understood generally; only that such a consent would still bring that intercourse into the definition of a rape solely because the legislature in its wisdom thought it fit to punish even that consensual but a deceitful intercourse as an act of ‘rape’. The legislature stopped there and did not find it desirable to punish any other instance of ‘intercourse by deception’. Period.

Going further on the fourth circumstance, if a stranger had pretended to be the husband of that woman but the woman had detected that he is not in fact the husband but had consented to an intercourse nevertheless with that man, that man would not have committed a rape of that woman in terms of that provision. Similarly, if a man pretends to be an acquaintance of a married woman and never even once represented himself to be her husband and the woman agrees to intercourse with him, he would not have committed any rape in terms of that fourth circumstance appended to Section 375 of the IPC.

We could now examine the consensual-intercourse-becomes-rape-afterwards theory more closely in terms of whether it falls anywhere within Section 375 of the IPC. Of course, we shall assume a natural and ordinary meaning to the word ‘consent’ that occurs in the second circumstance appended to Section 375. To begin with:

a) First circumstance - in terms of the first circumstance, the intercourse should not have taken place against the will of the woman. If a man falsely promises to marry a woman in the future in return for an intercourse and that woman agrees to an intercourse with him by believing in him, the resulting intercourse cannot be said to have been committed against her will; the first circumstance does not support this consensual-intercourse-becomes-rape-afterwards theory;

b) Second circumstance - in terms of the second circumstance, the intercourse should not have been committed without her consent. It is obvious that a woman who agrees to an intercourse in return for an assurance from that man to marry her in the future has actually consented to that intercourse under the expectation of a marriage in the future. To the extent there is an enquiry whether the actual act of the intercourse itself was committed with her consent, the obvious answer would be that the woman had actually and in reality, consented to the intercourse; thereby, the consensual-intercourse-becomes-rape-afterwards is not supported by the second circumstance;

c) Third circumstance - the consent of the woman should not have been obtained by putting her or any other person in whom she is interested in fear of hurt or death; we have assumed that a simple case of a consensual-intercourse-becomes-rape-afterwards involves no such threat being held out to the woman or to any other person of interest to her by the accused or by any other person; hence, the third circumstance would not support the consensual-intercourse-becomes-rape-afterwards theory;

d) Fourth circumstance - the consent of the woman has been obtained by a person by deceiving the woman into thinking that he is the lawfully married husband of that woman and she agrees to an intercourse solely because of her belief in that man being her husband when in fact, he is not her husband and he knows as much but has nevertheless deceived the woman. A case of consensual-intercourse-becomes-rape-afterwards presents no such difficulty and the fourth circumstance is squarely not applicable at all as there exists no marriage between the two at the time of the intercourse and the woman instead expects the man to marry her in the future;

e) Fifth circumstance - the consent of the woman has been obtained through the administration of an intoxicant or any other stupefying substance which would diminish the ability of that woman to understand the nature of the act to which she consents; we have assumed that a simple case of consensual-intercourse-becomes-rape-afterwards involves no such influence and accordingly, the fifth circumstance would be inapplicable to such a case;

f) Sixth circumstance - the woman giving consent must have been above 16 years of age; we have assumed that a simple case of consensual-intercourse-becomes-rape-afterwards involves a girl who is above the age of consent. When so assumed, the sixth circumstance would have no application to a case of consensual-intercourse-becomes-rape-afterwards.

As said earlier, it must surprise any reasonable person to note that the definition of a ‘rape’ in Section 375 of the IPC does not at all cover the case of a consensual-intercourse-becomes-rape-afterwards. The instance of an intercourse by deception is enumerated in the fourth circumstance and that is applicable only if the man who is not the husband of a woman deceives her into believing that he indeed is her lawfully married husband and the woman thereby agrees to an intercourse with him – a person that she takes to be her lawfully wedded husband. Section 375 of the IPC does not criminalise any other mode of intercourse by deception such as in case of a man pretending to be a woman’s friend when in fact, he is some other person and he thereby convinces the woman to have an intercourse with him on the mistaken belief that he indeed is her friend when in reality, he is some other person.

It must be firmly remembered that criminal statutes have to be strictly construed and for any act to strictly fall within the description of any offence, the language of the provision which describes the offence in question must be clear and any reasonable doubt over whether the act in question is covered at all by the prohibition in a statute should be resolved in favour of the accused. When the clear and express language of Section 375 of the IPC would not support the consensual-intercourse-becomes-rape-afterwards at all, why really did our courts come to hold that an intercourse on the false pretext of marriage becomes a rape afterwards?

An analysis of the various cases about the consensual-intercourse-becomes-rape-afterwards would show that our courts have laid down three broad tests: firstly, that the man must have never had the intention to marry the girl at the time he asks for the intercourse; secondly, the girl must have truly believed that she would be taken in marriage by the man afterwards and on that belief, she had consented to the intercourse; thirdly, the man delivers on his deception by refusing to marry that girl afterwards. That Section 375 of the IPC itself did not make any such declaration, the real trouble came about when some courts discovered a wrong answer to the question – “what really is the meaning of ‘consent’ in Section 375?” At a different place in the IPC, it is said that consent may not be free if there is a misconception of ‘fact’ on the part of the person giving the consent. So, a highly unsatisfactory judicial reasoning ensued thereby and our courts concluded that, “if a man does not intend to marry a girl and yet, asks her to have intercourse with him by promising to marry her and if the girl believes him then and agrees to an intercourse, she was under a misconception of fact.” The further part of this unsatisfactory reasoning is that “when the marriage does not take place in the future as promised in such a case, the fact that it does not take place will show that the girl was under a misconception of fact and the intercourse gets established as a rape at that point of the marriage not taking place in the future.” By this process of reasoning, our courts have actually created a new class of offence of rape - one that was never in the contemplation of the lawmakers at all. It is impermissible for a judge to create a new class of offence out of such an imagination and yet, this theory of consensual-intercourse-becomes-rape-afterwards put forth by our courts is nothing more than a judicial creation of a new crime that will someday crumble when exposed to serious and sustained reasoning.

Section 90 of the IPC reads as under:

Section 90: Consent known to be given under fear or misconception – A consent is not consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception or

Consent of insane person – if the consent if given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or

Consent of child – unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

To begin with, the first question would be – what really is the scope of Section 90 of the IPC? The answer is not very difficult to seek. This provision occurs in the chapter titled – ‘General Exceptions’ in the IPC. Now what is a ‘general exception’? Well, to know what it is, one must turn to Section 6 of the IPC. Section 6 is the first provision in the second chapter of IPC called as ‘General Explanations’. It speaks of the fact that the definition of any penal provision in the IPC should be understood with reference to the exceptions contained in the chapter titled ‘General Exceptions’ and that what is said in ‘General Exceptions’ may not be repeated at each and every place where an offence is defined. It says:

6. Definitions in the Code to be understood subject to exceptions —Throughout this Code every definition of an offence, every penal provision, and every illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the Chapter entitled “General Exceptions”, though those exceptions are not repeated in such definition, penal provision, or illustration.

Illustrations

(a) The sections, in this Code, which contain definitions of offences, do not express that a child under seven years of age cannot commit such offences, but the definitions are to be understood subject to the general exception which provides that nothing shall be an offence which is done by a child under seven years of age.

(b) A, a police-officer, without warrant, apprehends Z, who has committed murder. Here A is not guilty of the offence of wrongful confinement; for he was bound by law to apprehend Z and therefore the case falls within the general exception which provides that “nothing is an offence which is done by a person who is bound by law to do it.”

So, Chapter IV of the IPC is titled as ‘General Exceptions’ and in the absence of this chapter, a person could be charged and convicted if his conduct fell within the definition of any crime in the IPC. As the illustration a) to Section 6 provides – an act of murder by a child would still be murder and would be punishable by death or imprisonment for life but for Section 82 of the IPC which says that ‘nothing is an offence which is done by a child under seven years of age’. If not for this general exception, wherever an offence is defined, the legislature would have been burdened to state against each offence in the IPC that the commission of such an act by a child below seven years of age shall not be taken cognizance of. As such, the chapter titled ‘General Exceptions’ is nothing more than an exception to the several definitions in the IPC. Let us explore further:

Say, a child of 6 years of age is enraged by what is said by his father. In rage, he proceeds to his father’s bedroom, lifts a loaded pistol, brings it to where his father is and shoots at him. Say, the father drops dead right then. Has this child committed a murder of his father? Well, in terms of the provision in the IPC that defines this offence, this child has indeed committed a murder and could be tried for the said offence and risk death or life imprisonment as a punishment for his act. However, after an act is prima facie established to constitute some offence under the IPC, one should next turn to the chapter on ‘General Exceptions’ and in it, against this particular act by a child under 7 years of age, one would notice Section 82 that says “Act of a child under seven years of age – Nothing is an offence which is done by a child under seven years of age.” By reason of this provision, the police would be barred from bringing any charge under the IPC against any child who is below seven years of age.

Similarly, say A encounters B, a stranger, in a secluded place and tells him that unless he handed over all of his valuables right there and then, he would be killed. A struggle ensues and while B merely intended to protect himself and his valuables and never had any intention of killing A at all, he ends up accidentally killing A during his struggle. Technically, B could be tried for the murder of A and in any such trial, it would be open to B to lay out his defence in terms of Sections 96, 97 and 100 which occur in the said chapter titled as ‘General Exceptions’. These provisions specify that an act of self-protection that leads to a death of a crime-perpetrator is excused if the struggle ensued because of a reasonable apprehension of death or grievous bodily harm in the event of non-cooperation to a crime – ingredients that are attracted in the instant example. In the absence of these statutory defenses, a court may not be strictly bound to entertain such defenses; the court could have instead said to B, ‘you should have complied and handed over your valuables and then complained to the police about the theft and they could have done something or the other; your act of resistance took away the life of another person and your defence in court is unconscionable.”

In essence, it could be said that the chapter titled ‘General Exceptions’ is nothing more than an exception to the several definitions of crimes in the IPC. It would essentially signify that an act must first constitute an offence before one consults this chapter and this chapter would set out the exceptions and defenses to the act in question. But then, in the context of the consensual-intercourse-becomes-rape-afterwards theory, our courts have done the exact opposite – when the language of Section 375 by itself did not support the consensual-intercourse-becomes-rape-afterwards theory, our courts have created a new offence by wholly relying upon an exception provision! This is terribly unprecedented. In a very real sense, Section 90 of the IPC is not an exception but is merely a ‘general explanation’ and the commentaries written about the IPC in the first few decades after 1860 plainly point to this provision merely being a ‘general explanation’ rather than a ‘general exception’. For instance, let us look at the notes published in 1863 titled ‘INDIAN PENAL CODE (Act XLV of 1860) WITH NOTES’ by W.Morgan And A.G.Macpherson, ESQRS, Calcutta and London though with the full acknowledgement that the notes to a criminal statute are by no means decisive for the purpose of our discussion. The said notes had instructed as under:

“PREFACE: The Penal Code was originally prepared by the Indian Law Commissioners when Mr.Macaulay was the President of that body, and was laid before the Governor-General of India in Council in the year 1837. The Code was enacted by the Legislative Council in the year 1860, with some important changes, but without any substantial alteration in the frame-work or phraseology of the original code.

Until the law has received a construction from those who have authority to expound it, it is hoped that these notes on the text of the Code may be found useful.

They are, for the most part, compiled from the following authorities:

The notes in which the framers of the original code explain the principles adopted in its preparation;

The Reports (1846-1847) of the Indian Law Commissioners, Messers Cameron and Elliott, on the original code;

Notes on the first of these Reports, by Mr.J.M.Macleod;

The several Reports of Her Majesty’s Criminal Law Commissioners; and various treatises on criminal law by English and American authors”.

In the aforesaid notes, in respect of the chapter titled ‘General Explanations’ which begins with Section 6 of the Code, it is specifically emphasized that the ‘criminal quality of any act which is described by a word here explained, must depend on the definition in which it occurs’. This should persuade any reasonable person to view Section 375 of the IPC as the only proper provision to find out about the definition of the offence of rape and to not attempt at an independent definition of the offence of rape by recourse to Section 90 read with Section 6 of the IPC. The aforesaid notes state in respect of Section 6 and the chapter on “General Explanation” that:

“It is scarcely necessary to add that this chapter is merely one of explanation. The criminal quality of any act which is described by a word here explained, must depend on the definition in which it occurs. Thus, an effect may be caused ‘voluntarily’ within the meaning of the explanation (Section 39), but it must still depend on the particular definition or penal provision in which the word is used, whether any offence has been committed; for the voluntary causing an effect may be made criminal either absolutely or subject to exceptions”.

(emphasis supplied)

In the interest of a deeper scrutiny, let us look at Section 90 even more closely – it speaks of consent not being a consent if it was given out of fear or a misconception of fact. In stating as much, does this provision define any offence at all? Not at all. Where an offence is first established, Section 90 was intended to act as a general explanation or to rule out a defence. So, by reason of the language contained in Section 90, it was meant to be invoked only after the act in question would fit into the definition of the ‘offence’. For instance, Section 383 of the IPC defines ‘extortion’ and its illustration a) reads as under:

“a) A threatens to publish a defamatory libel concerning Z unless Z gives him money. He thus induces Z to give him money. A has committed extortion.

Say, in an action brought against the aforesaid A for having committed an extortion against Z, A might take the defence that his act would not constitute a crime on the pretext that Z had consented to pay him that money. A may even produce a note from Z showing that ‘he voluntarily consents’ to make the payment at issue to A. Should he do so, by reason of Section 90, the court would be bound to strike out that defence by holding that the consent that came from Z was induced by fear and that the so-called consent would be no defence to A’s act of extortion. In a situation of this kind, Section 90 would emphatically rule out A’s defence and would void whatever consent he could show as emanating from Z. This is the real function of Section 90. To charge A of the offence of extortion, the prosecution would not have to turn to Section 90 at all. The defence would of course, find from this provision that its proposed defence would hold no water in court.

Let’s not forget that there is a good reason for our statute to say what it says in Section 90. Say, a girl above the age of majority visits a doctor. She wants to be treated of some ailment and knows nothing or little about a sexual intercourse. The doctor tells her that he could treat her by inserting himself into her. She consents to it in the belief that it is a form of treatment to cure here; she simply believed the doctor. The doctor then penetrates her. He has committed a rape. The consent in this case was obtained by misstating a fact – that the intercourse was to cure the girl of some ailment. Even if the girl was precisely informed that she would be penetrated and so consented to that act, her consent was given in ‘misconception of a fact’. The fact here is the ‘intercourse’ and the doctor misstated this fact as a treatment and the girl, believing the doctor, ‘misconceived this fact’ to be something other than what it is. That is, she was under a ‘misconception of fact’. So, when a girl agrees to an intercourse in the mistaken belief that the male would marry her in the future, is she in any ‘misconception of fact’ over the fact of intercourse itself being something else? Totally absurd!

It is therefore, very apt to conclude that the definition of a rape is to be taken only from Section 375 of the IPC and Section 90 that is merely a general explanation has no role in defining a rape and whether an intercourse should be treated as a rape is to be decided solely by first consulting the six different circumstances enumerated in Section 375. It would be very much illegal for a court of law to define a rape by drawing from Section 90 of the IPC. All kinds of anomalous consequences would result from defining a rape only by recourse to Section 90 of the IPC. Say, there is a young man who is afflicted with grey hair and thereby dyes his hair to a black colour in the strong belief that he would be otherwise unattractive to any woman; say he asks a girl for an intercourse and she readily agrees to it. While Section 375 of the IPC would not cover such an intercourse as a rape, Section 90 would readily treat the same as a rape if the consent given by the girl was such that she could state to the court later that she did not know that the boy’s black hair was all fake and that she would not have consented to the intercourse had she known about the boy’s natural but unlikeable grey hair; given the boy’s own belief that he appeared to be very unattractive in his natural hair, the girl’s consent would be voided in the event of such a regret upon discovery and the boy could be convicted for life on the same principle that supports the consensual-intercourse-becomes-rape-afterwards theory! It would be difficult to imagine a more absurd and a wholly meaningless intent in a penal legislation. Equally, reliance on Section 90 to even define a ‘rape’ would render a large part of Section 375 as nothing more than surplusage. The definition of rape in Section 375 is a substantial statement in the IPC and it would be a mockery of all the known principles of interpretation should such a substantial definition be largely rendered redundant by our courts dispensing with a large part of it in favour of Section 90 to define an offence of rape.

Let us analyse even more illustrations to discover how casual and incongruous is the judicial reasoning behind the consensual-intercourse-becomes-rape-afterwards theory. After all, that Section 90 of the IPC is supposed to have fueled this consensual-intercourse-becomes-rape-afterwards theory, the same Section 90 must also fuel all instances of intercourse by deception and let us look at a few such instances of intercourse by deception with a full acknowledgement of the fact that it would be impossible to illustrate even a fraction of such ‘intercourse by deception’ cases that take place in reality – if a man claims to be a man of a different background, financial status, religion, occupation or caste just to secure a woman’s consent to an intercourse with her, he would necessarily commit an intercourse by deception and all such cases should, according to the consensual-intercourse-becomes-rape-afterwards theory, constitute a ‘rape’!

A person has no money with him and falsely promises to pay a sex worker in return for intercourse with her. She agrees. They both have intercourse. After that, without paying her, he runs away. Of course, he had no intention of paying her at all and the same reasoning that is behind the consensual-intercourse-becomes-rape-afterwards theory should hold here too that there was a ‘rape’ because the woman was under a misconception of fact – that the man had the means and the willingness to pay; when in fact, he had neither. Decisions of overseas courts are quite helpful in this regard and on the same facts, courts overseas have held that there indeed was ‘consent’ in such cases too for the intercourse; just that ‘consent’ was obtained by deception and that ‘consent obtained by deception’ too is consent unless the statute in question explicitly asks the courts not to treat such ‘consent by deception’ as consent at all for the purpose of the rape law. One of those decisions has even been quoted by our Supreme Court. Surprisingly, the consensual-intercourse-becomes-rape-afterwards theory continues to remain fully in force in our courts.

Let us continue our examination of the fallacy in the consensual-intercourse-becomes-rape-afterwards theory after we notice a few relevant overseas authorities though with the full acknowledgment however, that such overseas authorities are merely persuasive:

Writing in Western Australian Law Review [Vol 25, Pg.334+], G.Syrota analyses:

Rape: When Does Fraud Vitiate Consent?

A prostitute is tricked into having sexual intercourse with a man by a false promise of payment. Is the man guilty of raping the prostitute? A recent English case says 'no'. This article asks whether the answer would be different in Western Australia. 'An essential ingredient of the offence of rape is the proof that the woman did not consent to the actual act of sexual intercourse with the particular man who penetrated her'. The English Court of Appeal so held in K v Linekar [1995 (3) All ER 69, 73], a landmark case which may well prove to be decisive of the meaning of 'consent' not only under the English sexual offences legislation but also under the corresponding provisions of the Western Australian Criminal Code. Linekar's case was an atypical one in that it did not involve the man overpowering the woman by violence, or threats, in order to have sexual intercourse with her. Rather it involved the man gaining the woman's consent to intercourse through the use of false pretenses. The case therefore gave the court an opportunity to review the effect of fraud on consent in the context of the crime of rape and sexual offences generally.

In Linekar the trial judge evidently took the view that the crime of 'rape by fraud' either had been or should be considerably widened; but his view was firmly rejected by the Court of Appeal which redefined this category of rape along traditional, and very restrictive, lines.

THE FACTS: At the time of the alleged offence, the defendant, Gareth Linekar, was a 17 year old unemployed youth. His victim (the complainant) was a 30 year old woman who occasionally worked as a prostitute to supplement her state pension.

On 21 March 1993, shortly after midnight, Linekar approached the complainant who was working that night as a prostitute outside the Odeon cinema in Streatham, South London. A fee of £25 was negotiated for sexual intercourse, but L had no money on him and no means of paying - a fact which he deliberately concealed from the prostitute.

Sexual intercourse took place shortly after this initial meeting on the balcony of a nearby block of flats, after which L ran off without paying. The woman then knocked on the door of one of the adjacent flats. She was nearly naked, clearly very distressed and complained that she had been raped. The police were called and they subsequently arrested and charged him with rape, contrary to section 1 of the Sexual Offences Act 1956 (UK). In England, rape is defined as follows:

“A man commits rape if (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it, and (b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it.”

At the trial, the judge directed the jury that if L had intended, from the outset not to pay for sexual intercourse with the woman, in breach of their agreement, then the woman's consent was negatived and he should be convicted of rape. The jury found L guilty by a majority of 11: 1.

The question for the Court of Appeal was whether the trial judge's direction (namely, that the deception by L regarding his intention to pay for sex destroyed the woman's consent) was correct. In reaching its conclusion that the direction was not correct, and that L's conviction should be quashed, the court reviewed a wide range of English and Commonwealth authorities dealing with the question of whether fraud can vitiate consent in rape and other cases of sexual assault.

POLICY AND PRECEDENT

In quashing L's conviction the Court of Appeal was clearly influenced both by policy and precedent. As for policy, the court was keen not to broaden the crime of rape by fraud to such an extent that men would be put at risk of being charged with this offence in seemingly trivial cases. A man who promises a woman a fur coat in return for sexual intercourse, with no intention of fulfilling his promise should not be guilty of rape, the court held. “Likewise, a bigamist who 'marries' and subsequently has sexual intercourse with his second 'wife', whilst concealing from her that he is still married to another woman, should be charged with bigamy; but he should not be guilty of rape."

The other case relied upon by the Court of Appeal was Clarence [(1888) 2 QBD 23]. This held that a man could not be convicted of rape (or of inflicting grievous bodily harm) if he infected a woman with gonorrhea during sexual intercourse. The fact that the man knew that he was suffering from gonorrhea, and deliberately concealed this from the woman, did not mean that her consent to have intercourse with him was destroyed. In the course of giving his judgment in this case Wills J said:

“That consent obtained by fraud is no consent at all is not true as a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent”.

Stephen J’s judgment: “[T]he proposition that fraud vitiates consent in criminal matters is not true if taken to apply in the fullest sense of the word, and without qualification…Many seductions might [otherwise] be rapes, and so might acts of prostitution procured by fraud, as for instance by promises not intended to be fulfilled.”

By analogy with this dictum, the Court of Appeal in Linekar reasoned that, although L had obtained the complainant's consent to intercourse by fraud, 'it would be childish to say that she did not consent'. It followed that L's conviction of rape had to be quashed.

WHEN DOES FRAUD NEGATIVE CONSENT?

Having reviewed the authorities the Court of Appeal concluded that the mere fact a man succeeds in seducing a woman by means of deception is not itself sufficient to render him guilty of rape. The crucial question is not whether the man duped the woman in some way, but whether the woman did or did not consent to have intercourse with him. The court said:

“In our judgment…[it] is the absence of consent and not the existence of fraud which makes it rape.”

A 2013 decision of the Court of Appeals for the State of California in the United States is much closer to the discussion we are having here in the context of India. Section 375 of the Indian Penal Code, 1860 implicates a man in rape when he successfully impersonates another woman’s husband to have intercourse with that wife of another person. A similar provision exists in Section 261 of the California Penal Code, 1872. Originally, the definition of ‘rape’ was quite similar to both these statutes – a person could not be charged with rape if he had impersonated anyone other than the husband of the victim. In 2013, the Court of Appeals in the State of California was faced with the following question involving ‘intercourse by deception’:

“A man enters the dark bedroom of an unmarried woman after seeing her boyfriend leave late at night, and has sexual intercourse with the woman while pretending to be the boyfriend. Has the man committed rape? Because of historical anomalies in the law and the statutory definition of rape, the answer is no, even though, if the woman has been married and the man had impersonated her husband, the answer would be yes.”

It would be pertinent to note the similarities in the original definition of ‘rape’ in both the statutes. The rape definition in the California statute has been extensively amended over the last 140 years; however, the part that dealt with impersonation had been retained as it stood originally – impersonating a husband alone was implicated in the offence of rape; impersonating any other person was not a crime under the rape definition.

Definition of ‘rape’ in the Indian Penal Code, 1860 as it stood during the commencement of the statute: 375. Rape.—A man is said to commit “rape,” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:— First — 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 ten years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception —Sexual intercourse by a man with his own wife, the wife not being under ten years of age, is not rape. Definition of ‘rape’ in the California Penal Code, 1872 as it stood during the commencement of that statute: 261. Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: 1. Where the female is under the age of ten years. 2. Where she is incapable, through lunacy or any other unsoundness of mind, whether temporary or permanent, of giving legal consent. 3. Where she resists, but her resistance is overcome by force or violence. 4. Where she is prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution; or by any intoxicating, narcotic, or anesthetic substance, administered by or with the privity of the accused. 5. Where she is, at the time, unconscious of the nature of the act, and this is known to the accused. 6. Where she submits, under a belief that the person committing the act is her husband, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce such belief. Section 263: The essential guilt of rape consists in the outrage to the person and feeling of the female. Any sexual penetration, however slight, is sufficient to complete the crime.

It must also be noted that the California Penal Code, 1872 at its commencement and even to this date, carries the following interpretation clauses:

Preliminary Provisions -

4. The rule of the common law, that penal statutes are to be strictly construed, has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.

16. Words and phrases must be construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, must be construed according to such peculiar and appropriate meaning.

In holding that the California Penal Code, 1872 (just as the IPC) had nowhere said that a person who engages in an intercourse by impersonating someone other than the husband commits a rape of that woman, the Court of Appeals therein held as under: [(2013) 212 Cal.App.4th 583]

“While that might be a reasonable interpretation of the language of subdivision (a)(4) of section 261, we are constrained by the principles of statutory construction from reaching such a conclusion. “The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. . . . [W]e do not construe statutes in isolation, but rather read every statute ‘with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.‟ [Citation.]” (People v. Pieters (1991) 52 Cal.3d 894, 898-899.) “Generally, the provisions of a penal statute ‘are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.‟ [Citations.] Where the statute is susceptible of two reasonable constructions, however, a defendant is ordinarily entitled to that construction most favorable to him. [Citations.]” (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 487-488.) Most importantly, for the purposes of this case, “courts are ‘exceedingly reluctant to attach an interpretation to a particular statute which renders other existing provisions unnecessary.‟ [Citation.]” (People v. Olsen (1984) 36 Cal.3d 638, 647.) With these rules in mind, we turn to section 261.”

“When section 261 was first codified in 1872, it provided that rape was an act of sexual intercourse accomplished with a female not the wife of the perpetrator under any of six circumstances…those circumstances were “[w]here she submits, under the belief that the person committing the act is her husband, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce such belief.” [See Ann. Pen. Code,§ 261 (1st ed. 1874, Haymond & Burch, commrs.-annotators)] According to members of the California Code Commission who annotated the first edition of California’s Penal Code, these provisions were included specifically in response to cases from England and elsewhere that held that no rape was committed under those circumstances. (Id. at pp. 113-114.) Although section 261 was amended numerous times over the past 140 years, these two provisions – now subdivisions (a)(4) and (a)(5) -- remained unchanged... Importantly, however, the bill left subdivision (a)(5) undisturbed.”

“In light of the continued existence of a separate provision that expressly makes sexual intercourse by impersonation a rape, albeit only when the victim is married and the perpetrator impersonates the victim’s spouse, we are compelled to interpret section 261, subdivision (a)(4), in a way that does not render subdivision (a)(5) superfluous. Therefore, we reluctantly hold that a person who accomplishes sexual intercourse by impersonating someone other than a married victim’s spouse is not guilty of the crime of rape of an unconscious person under section 261, subdivision (a)(4).”…

It must be noted that the California Court of Appeals did not allocate to itself, a power to invent a new definition of rape once it found that the existing provision was woefully inadequate to meet an unanticipated but a grave circumstance. It set aside the conviction of rape by saying that it ‘reluctantly’ reaches the result that it did.

A brief reference may be made to a legislative response to the aforesaid decision [CALIFORNIA LEGISLATIVE ASSEMBLY COMMITTEE ON PUBLIC SAFETY, Tom Ammiano, Chair, SB 59 (Evans) - As Amended: June 12, 2013]

“1) Author’s Statement: According to the author, ‘SB 59 responds to a legal anomaly in an outdated rape statute. In People vs Morales, the 2nd District Court of Appeal overturned the rape conviction of Julio Morales based on a provision from the 1870's that upholds the rights of a married victim where the perpetrator pretends to be the victim's spouse.”

"In Morales, the victim was unmarried, and the conviction was overturned. The court acknowledged the archaic statute that has resulted in an overturned rape conviction and exposed this anomaly that protects the rights of married individuals, but not the rights of others.”

"SB 59 updates the arcane language contained in various sections of the California Penal Code by substituting and defining the new term of "sexual partner in the place of the term ‘spouse’.”

In the midst of many such illustrations, let us also explore a few ready objections to this judge legislated crime of consensual-intercourse-becomes-rape-afterwards.

First objection rests on public policy - A man might really want to marry a girl and in that context, he might ask her for an intercourse. But then, the girl is fully free to say ‘no’ to that man and to say that ‘she only believes in sex after marriage’. Is it too much for our jurisprudence and courts to hold a girl to this standard? It would not have been judicially imprudent for a judge to simply hold that a girl who is given a proposal of intercourse first and marriage later is fully free to reject the offer of sex altogether and that, if she agrees to have sex first, she does so at her own risk and is just as much as the man responsible for the resulting intercourse.

The next objection is on the complexity involved in a decision to marry - marriage is not a contract under Indian law and begins only at the time when the requisite rituals have been performed and concluded. So, all that happens prior to a marriage are not really the concern of a court. The issues surrounding a desire to marry are so varied, complex and unpredictable that only an ignorant person would think that a desire to marry is predictable and is legally provable in a court of law. The fact, however, is that it is simply impossible to prove objectively or satisfactorily, a person’s state of mind behind his decision to marry, to not marry or to postpone his marriage. Our courts have erred so much in propounding this consensual-intercourse-becomes-rape-afterwards theory that it is wholly at risk of losing out to sustained reasoning in the future. After all, in a criminal case such as that of rape, no defendant could be convicted unless there be proof beyond reasonable doubt. By its very nature, the consensual-intercourse-becomes-rape-afterwards theory is incapable of proof beyond reasonable doubt.

Further, we would do well to find greater fault in all the poor judicial reasoning that underlies this fundamentally flawed theory of consensual-intercourse-becomes-rape-afterwards through even more illustrations:

Say, it is Monday and a man in Delhi knows that he has a flight to board on Tuesday morning to Bangalore and that he will not be in Delhi on Tuesday. He meets a woman by chance at a mall in Delhi on Monday and she agrees to have an intercourse with him subject to him taking her out to a movie and an expensive dinner on Tuesday in Delhi. He promises to do so. On Tuesday, he leaves for Bangalore, disappoints and permanently leaves this woman high and dry. So, our courts will have to treat this too as a ‘rape’ on Tuesday should the woman complain. Of course, courts cannot make any further distinction or evolve more moral theories in such supposedly criminal cases – their task is to interpret and not to legislate when faced with criminal laws.

Say, a male and a female propose to first have sex and after that, the male would decide whether he would marry the girl and if he decides to not marry, he would give a good set of reasons to the girl and leave her. Both have sex first. Then, the male says that he is no more interested in the girl and leaves her without giving her any reason at all. So, going by how our courts have deduced the prevailing consensual-intercourse-becomes-rape-afterwards theory, the girl should be able to complain of rape in this case too because 1) here too, there was intercourse between a man and a woman, 2) the woman agreed to the intercourse on the belief that if the man would choose to not marry her after the intercourse, he would give her a good set of reasons, 3) the woman thought and the law would have expected the man to give her a good set of reasons and yet, he gave her no reason to walk away from her. However, it would be very absurd to treat such a situation as falling under the definition of a ‘rape’. That he did not give her any set of reasons at all, he would be liable to be convicted for ‘life’ in prison - the woman was under a misconception of fact eventually rendering her intercourse as a rape. The court must find ‘rape’ even in such a case simply because the woman was not given that man’s reasons to leave her. This example alone should show how absurd is the prevailing consensual-intercourse-becomes-rape-afterwards theory and how much badly, it is waiting to be corrected by our courts.

Next, say, a man might really want to marry a girl on Monday and ask her for sex. She consents immediately by telling him that she truly thinks that he will not desert her afterwards. Say, she also truly believes that he will not desert her afterwards. After the sex, on Tuesday, the man might begin to dislike her because he later thought that she should not have so casually agreed to have sex for the mere asking. So, he might tell her on Tuesday that he is no longer interested in marrying her. Now, who is to say that this man is not entitled to form this particular view or to lead his life according to his own dictate? Our courts? Not at all. On what authority will any judge preach a doctrine that this man is not free to form such a view on Tuesday? On what authority will our courts regulate the thought of its citizens at all? There is no such authority in any court to dictate to a citizen on what should or should not be his thought or way of life – the Constitution has allocated the power to criminalize any conduct of its citizens to lawmakers alone. So, in this example, even if the man had really thought that the girl had consented to sex solely because she believed that he would not desert her, he is entitled to come to the view that notwithstanding her honest belief, she should not have so casually agreed to have sex with him. It must be said here that sexual passions do not always lend themselves to a rational behavioural model and only an ignorant person would impose a rational behavioural model over every human consensual intercourse.

Going further, say a girl chooses to regularly have sex with a certain individual whom she considers to be handsome without any condition or expectation – neither party expects to marry each other. She then comes across another man who is relatively less handsome and she would not at all want to have sex with this less handsome man. However, this relatively less handsome man promises to marry her in the future and asks her for intercourse. She does agree to the intercourse however, on the condition that this less handsome man should marry her soon thereafter. Intercourse ensues. After the intercourse, this less handsome man tells that woman that he no longer cares and does not want to marry her. Now, one only needs to take a look at all the cases that have gone on to convict men by expressing considerable moral outrage at the male conduct of first having sex on the pretext of marriage and then not marrying afterwards. Take any one such case that led to a conviction and introduce an additional factor into it - that the woman concerned did have casual intercourse with another man without ever wanting to marry that person. What would have the court done after it learnt about this additional aspect? Firstly, in concluded cases, the courts had already relied upon poor judicial reasoning to put such men to conviction and imprisonment while expressing unwarranted moral outrage at his conduct and at how much the victim had come to agonize for the intercourse taken on a false pretext. Now, after this additional revelation, the moral outrage of the court must necessarily disappear – after all, the woman was comfortable with intercourse with another man with whom she had no expectation of marriage at all. Interestingly, the judicial reasoning must remain intact however and the courts cannot reach a different conclusion at all and must reach the same conclusion and convict this latter man even after this additional aspect emerges. This is precisely why it is being repeatedly said here that poor judicial reasoning is implicit in all such cases of consensual-intercourse-becomes-rape-afterwards.

The judicial reasoning behind the consensual-intercourse-becomes-rape-afterwards theory only concerns itself with the fact that the woman agreed to the intercourse on the pretext of marriage that did not take place later; it does not at all ask whether the woman would have only had intercourse with a man whom she wanted to marry with. In fact, one would be hard pressed to discover police investigation in such cases probe whether the woman has had any intercourse at all with any other person without any expectation of marriage.

Yet, this flawed consensual-intercourse-becomes-rape-afterwards theory has sustained itself in the past few years by building up massive but misplaced moral outrage and has gone on to convict scores of men on a charge that the lawmakers themselves had never authorized in the very first place.

Finally, say at a point in time, a man truly wants to marry a girl and both have intercourse first and the girl truly expects the man to marry her eventually. They get closer to each other and the man begins to dislike the girl the more he gets to know her. The fact that they started their relationship with an intercourse should not take away the freedom to this man to say later that he no longer intends to marry the girl as he has tended to not like her afterwards. Say, he tells the girl that he is no longer interested in marrying the girl. How is any judge to find out and weigh whether this man had a justification at all to call off this proposed marriage? In other words, the judge will have to necessarily make a subjective judgment on whether this man was justified in not liking the girl enough to take her in marriage. Even if the man did not honestly dislike the girl afterwards, he is always free to fake a ‘dislike’ in court and put the judicial system to evaluate whether his ‘dislike’ was reasonable under the circumstances. Even worse, let us take the case of a man and a woman who first have intercourse on the condition that the man would marry the girl if he liked the experience of the ‘intercourse with her’. After the intercourse, the man says that he did not like the experience and the girl and the courts would be put to wonder if the man was justified at all in not ‘liking the intercourse with the girl’ as an excuse to not consider marriage with the girl.

The Parliament had never invited our courts to enter into such evaluations in the very first place. In fact, a judge made criminal law precisely brings about such insurmountable difficulties and one only has to look at all such cases where the accused were unpredictably and inconsistently let off or acquitted after having been charged under the consensual-intercourse-becomes-rape-afterwards theory. One will see the most bizarre of defenses such as – the girl should have known that she and the boy were of different castes and a marriage would have been difficult, the girl was reasonably educated and should not have been so gullible, the girl already knew that the man was not really serious about marrying her, the girl knew that the boy would listen mostly to his parents and his word about marrying her should not have inspired much confidence in her, the girl and the boy were barely compatible, the girl and the boy had very different upbringing and economic status and so on. The objectionable thing here is not that the courts have been content to accept such unsatisfactory and bizarre defenses in cases after having charged the accused under the consensual-intercourse-becomes-rape-afterwards theory; the real wrong was to have charged a man under rape in the very first place on a non-existent offence.

Also, in many cases, the courts that have convicted solely by relying on the consensual-intercourse-becomes-rape-afterwards theory have declared that ‘a woman’s body is not a plaything’ and the like. It is correct to say that a woman’s body is not a plaything but it would have been proper for those judges to also probe why a woman should have let her body become a plaything when she was fully free to protect herself by refusing to an intercourse with a man who is not her husband at all. After all, the consensual-intercourse-becomes-rape-afterwards theory presupposes that a woman is free to decide on whether to marry or not and is equally free to decide to not have intercourse with a man who is not her husband. So, the consensual-intercourse-becomes-rape-afterwards theory already notes that a woman is under no compulsion to agree to a man’s request for an intercourse merely because of his promise to marry her in the future. As such, the freedom to say no to an intercourse carries also with it, the responsibility to exercise such a freedom at her own risk. If a girl who should make a choice out of her own free will should remain mindless or reckless about the consequences of her own actions and would consent to an intercourse with a man who is not her husband at that moment, she must necessarily take the risk that she would be left high and dry should the man renege on his promise. Should she assume that the man would inevitably make good on his promise and take her in marriage, the obvious question that she invites is – “even if that man had the honest intention of taking you in marriage when he sought sexual favour from you, on what moral, cultural or societal ground would you bind that man to his promise and why should he not change his mind should he determine that his happiness is best served by not marrying you?” Obviously, the answer might come in a form such as – “he has ravished me on that pretext”. Well then, the woman should know that he could not have ravished her without her permission and her willingness for an intercourse was just as bad as his intent to ravish her. If he was morally at fault in asking for a sexual favour before marriage, the girl too was morally at fault in willingly agreeing to it when she actually and legally possessed the freedom to simply reject him. So, a reasonable question that this discussion raises is – why was it so difficult for our courts to hold the girls in their cases to a far higher standard of feminine autonomy that would have made the court to say something like: “the girl in this case was legally and actually free to say that she would not have sex prior to a marriage and she could have asked the boy first to work on getting their marriage done and that intercourse would follow after marriage and she could have flatly refused to indulge in any intercourse before marriage”. Sadly, case after case in our courts in which men have gone on to be haplessly convicted on this consensual-intercourse-becomes-rape-afterwards theory did not did not bring up any judge who would hold a girl to a higher moral conduct or higher standard of feminine autonomy as noted.

On a related note, it would not be out of place to say here that the consensual-intercourse-becomes-rape-afterwards theory would have certainly driven Lord Macaulay, the author of the IPC into an irreversible state of shock had he been alive today. The precision and significance of the Indian Penal Code, 1860 is best evaluated by a brief account of its history and place in the world:

The Indian Penal Code, 1860 is the first criminal code enacted in the British Empire;

The IPC is also credited by many scholars as an important episode in the codification of criminal jurisprudence in several parts of the world. [see E.Stokes, The English Utilitarians and India, Oxford, Oxford University Press, 1959; JF Stephen, A History of the Criminal Law of England Vol.3, London, Macmillan, 1883 – “The Penal Code was the first specimen of an entirely new and original method of legislative expression…In the first place the leading idea to be laid down is stated in the most explicit and pointed form which can be devised. Then such expressions in it as are not regarded as sufficiently explicit are made the subject of definite explanations. This is followed by equally definite exceptions”];

Frustrated with the chaotic state of the English criminal law, Lord Macaulay had famously declared that “a code is almost the only blessing, perhaps the only blessing, which absolute governments are better fitted to confer on a nation than popular governments” [10 July 1833, Parliamentary Debates 3rd Series Vol.19];

The draft of the IPC as submitted along with the Commissioners’ Final Report to the India Legislative Council on 14 October, 1837 was solely authored by Lord Macaulay himself. [Law Commissioner John Macleod’s testimony in 1848 – “I may state a fact already generally known when I say that Mr.Macaulay is justly entitled to be called the author of the Indian Penal Code”; Notes on the Report of the Indian Law Commissioners on the Indian Penal Code (London, 1848)];

Through the IPC, Lord Macaulay had ushered in precision, accuracy and a call for codification of criminal law elsewhere and people who would thrive on chaos and uncertainty in criminal law did not take kindly to him. The Law Times obituary upon his death had said – “His Code is …wholly worthless…with scarcely a definition that will stand the examination of a lawyer or laymen for an instance…All hope of Macaulay as a lawyer, and also as a philosopher was over as soon as his code was seen” [ 7, January, 1860];

In his ‘Introductory Report upon the Indian Penal Code’ submitted to Lord Auckland, the Governor-General of India in Council on 14, October, 1837, Lord Macaulay had insisted that the central purpose of the Indian Penal Code was to reduce or even eliminate guesswork and speculation by judges in criminal cases about the very meaning of the law itself. His Report had said:

“…A legislator may, if he thinks fit, avoid such definitions, and by avoiding them he will give a smoother and more attractive appearance to his workmanship; but in that case he flinches from a duty which he ought to perform, and which somebody must perform. If this necessary but most disagreeable work be not performed by the law-giver once for all, it must be constantly performed in a rude and imperfect manner by every judge in the empire, and will probably be performed by no two judges in the same way…”

“...That a law, and especially a penal law, should be drawn in words which convey no meaning to the people who are to obey it, is an evil. On the other hand, a loosely-worded law is no law, and to whatever extent a legislature uses vague expressions, to that extent it abdicates its functions, and resigns the power of making law to the courts of justice”.

“The power of construing the law in cases in which there is any real reason to doubt what the law is amounts to the power of making the law…”

“The publication of this collection of cases decided by legislative authority will, we hope, greatly limit the power which the courts of justice possess of putting their own sense on the laws…”

It was the intention of the IPC’s author to observe the actual working of the Code itself in operation in order to make the necessary later changes to it and he was wholly opposed to a judge putting his own sense on it in case of any doubt:

“…In some cases it will be found that the law is already sufficiently clear, and that any misconstruction which may have taken place is to be attributed to weakness, carelessness, wrongheadedness or corruption on the part of an individual, and is not likely to occur again. In such cases it will be unnecessary to make any change in the code…Important questions, particularly questions about which courts of the highest rank have pronounced opposite decisions, ought to be settled without any delay; and no point of law ought to continue to be a doubtful point more than three or four years after it has been mooted in a court of justice…in as much as the additions to the code will proceed from the legislature, and will be of unquestionable authority; whereas the reports would only give the opinions of the judges, which other judges might venture to set aside”.

Incidentally, while the consensual-intercourse-becomes-rape-afterwards theory that has been employed by our courts to wrongfully convict men comes as a complete derogation of what was originally intended by the author of the IPC, there is another desire of its author that remains unfulfilled even to this date – authoritative vernacular translations of the IPC to be produced and circulated in this country. Then, Lord Macaulay had wanted that:

“In conclusion, we beg respectfully to suggest that, if your Lordship in Council is disposed to adopt the code which we have framed, it is most desirable that the native population should, with as little delay as possible, be furnished with good versions of it in their own languages…and we are confident that your Lordship in Council will not grudge anything that may be necessary for the purpose of enabling the people who are placed under your care to know what that law is according to which they are required to live”.

I would venture here to request the Government of India to prepare and provide for authoritative translations of the IPC for use or reference in our trial courts and by our brethren at the Bar.

Finally, the consensual-intercourse-becomes-rape-afterwards theory of rape as evolved by our courts must dissolve in the light of a better and a satisfactory judicial reasoning. An intercourse on the pretext of marriage does not become a rape if no marriage takes place later. It is not for a court of law to evaluate whether an intercourse taken in the name of a future marriage becomes a rape if there be no such future marriage – if the court has not been invited to do so by a law that expressly states as much and has also provided for an express and elaborate set of excuses, defenses and justification. The Parliament of India and the State Legislatures have said nothing yet on this aspect and it is not for a court to invent a crime and to enforce a novel criminal offence – the consensual-intercourse-becomes-rape-afterwards theory. The time has come to stop this grave miscarriage and failure of justice. Scores of men who were convicted on this deeply flawed theory and who are now languishing behind bars deserve to have their convictions reopened in courts, men who are undergoing trials on this theory deserve to have their trials closed and men who are undergoing criminal investigations on this unlawful theory deserve to have it all withdrawn. Article 21 of our Constitution commands that no person’s liberty should be affected without a due procedure of law and deserves to be enforced in respect of all of such unfortunate men. The consensual-intercourse-becomes-rape-afterwards theory has no place under the Indian Penal Code, 1860 and is therefore not, a procedure sanctioned under our Constitution. And, the vexation and punishment that has been inflicted in its name is now ripe for reversal.

I request the Government of India to act on this request and to duly enforce the Constitution of this country by first recognizing that the judge-invented consensual-intercourse-becomes-rape-afterwards theory is a breach of a constitutional safeguard and all men who are currently in conviction, trial or investigation on this illegal and wholly unconstitutional theory deserve to be protected and legally redeemed through an appropriate governmental and judicial intervention.

Sincerely

K.V.DHANANJAY, Advocate