Misconception Of Fact Does Not Amount To Free Consent, Says Bombay High Court

Bombay High Court on Consent: The Nagpur bench of Bombay High Court refused to quash an FIR against the man who is accused of establishing sexual relations with his former fiance, on the pretext of marrying her. The court labelled the consent granted by the woman to sexual relations as a "misguided" one that couldn't be considered free.

Justice AS Chandurkar and Justice GA Sanap stated that the sexual intercourse was against the woman's will as her consent was obtained under the promise to marry is not a free one. "The consent given under the misconception of fact could not be said to be free consent," the court ruled.

What is a "misconception of fact"? 

In Pradeep Kumar v. State of Bihar (2007), it was held by the Supreme Court that the term ‘misconception of fact’ defined under Section 90 of IPC is broad enough to include all cases pertaining to misrepresentation of facts, deceit, fraud, etc reference to which consent is given. Section 3 of the Indian Evidence Act, 1872 also provides for intention to be treated as fact. Thus, if the consent of the victim is procured by misrepresentation of facts or fraud then it will be treated as against her will.

Suggested Reading: How To Get Consent For Sex: And No, It Doesn’t Have To Spoil The Mood

Therefore, when the accused had sexual intercourse with the woman by falsely promising her of marriage without actually intending to marry her and the woman believed the accused with good faith and gave her consent because of the assurance given by the man, it would be considered as a misconception of the fact that would amount to rape and is punishable under the Indian Penal Code.

The Bombay High Court case

The Bombay High Court made the abovementioned statement while hearing the case of a couple who got engaged on February 22, 2021. Their marriage was scheduled to happen in Gadchiroli in April the same year. But due to the coronavirus pandemic, it was postponed, and later it was again postponed as the woman tested covid positive.

In June, the boy threw a party at a Karhandla resort where he coerced the woman into a sexual relationship on pretext that they would soon be married. He had sexual intercourse with her the following morning as well, against her wishes, again.

After the incident, the man allegedly began avoiding his fiance, stating compatibility issues. Eventually, the woman lodged a rape complaint against the accused, who then approached the court to quash FIR.

The FIR  was registered for offences under Section 376 (rape) and 417 (cheating) of the Indian Penal Code.

Suggested Reading: Kerala HC: Non-Penetrative Sexual Acts Without Consent Also Rape

The judgment: 

"In this case, the facts in the FIR and the conduct of the applicant would clearly show that the intention and the motive of the applicant was sinister," the order stated. "It can be gathered on the basis of the material that the applicant had hidden intention not to marry with the applicant once his sexual lust is satisfied," the Court stated while refusing to quash the FIR. The case was not just of cheating but cheating coupled with rape.

Why the case matters

Even in this day and age, the definition of consent remains clear to many, so does what amounts to its violation. Manipulating a person into granting sexual consent is an offence because it leads to not only sexual violation but also a breach of trust and thus amounts to cheating or fraud. While sex before marriage as an issue itself needs to be stigmatised, so that women can make more control over their sex lives, it is also important to establish that under no circumstances should it be acceptable to misguide a person, irrespective of their gender.