Rape is the culmination of a machismo which controls women forcibly, treating them as properties. In Britain, after the Norman Conquest, the King made rape non-compensable. Earlier, justice was dispensed by tribal chiefs, and all wrongs were compensable. The King did it in order to establish his authority as people were going to tribal chiefs with their complaints. Rape was the first offence to be made non-compensable. Rape led to the breach of peace as a woman was considered the property of the clan and it was perceived as an offence against the clan. Thus, the revulsion that rape created was rooted in woman’s subservience to man.
The concept of treating woman as the property of man is no longer in force. The Supreme Court of India decriminalised adultery in 2018. Section 497 of the Indian Penal Code provided for punishment to only the man for having consensual sex with a married woman. The wife was seen as the property of the husband. Neither is punished today.
Nevertheless, both socially and legally, rape is abhorrent. But for a while now a certain type of this transgression is making headlines. It concerns sex on the promise of marriage. In recent years, the number of these cases has grown exponentially. In 2016, of 38,000 cases of rape, 10,016 — over one-fourth — were such cases, which burdened the courts.
Confronted with the issue in Pramod Suryabhan Pawar v. State of Maharashtra, a division bench of the Supreme Court, comprising Justice D.Y. Chandrachud and Indira Banerjee, clarified that there is a distinction between promises made in good faith and false promises made solely with the purpose of breaking them: “Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a ‘misconception of fact’ that vitiates the ‘consent’.” Under Section 375 of the IPC, the consent of a woman is vitiated on the ground of a “misconception of fact” where such misconception was the reason for her to get into physical relations. In this case, the accused, a CRPF officer, moved the Supreme Court against the decision of the Bombay high court, which rejected his plea to quash the FIR.
