Holding

A promise of marriage is not a misconception of fact; the consent was voluntary and the conviction under Section 376 IPC was set aside.

Summary

The appellant, a 20‑year‑old man, was convicted of rape under Section 376 IPC for having sexual intercourse with a 19‑year‑old college student who alleged that she consented only because he promised to marry her. The trial court and the Karnataka High Court held that the promise constituted fraud that vitiated consent, invoking Section 90 of the IPC. On appeal, the Supreme Court examined whether a promise of marriage amounts to a "misconception of fact" under Section 90 and whether the prosecution proved the absence of genuine consent. The Court held that a false promise of marriage is not a misconception of fact; the prosecutrix possessed sufficient intelligence, understood the consequences, and voluntarily consented out of love, not fear or deception. Consequently, the prosecution failed to discharge the burden of proving lack of consent, and the conviction was set aside, acquitting the appellant.

Issues considered

The consent obtained by the promise of marriage constitutes a misconception of fact under Section 90 IPC?
Whether Section 90 IPC can be invoked to vitiate consent in a rape case where the promise of marriage is involved?
Whether the prosecution proved the absence of genuine consent as required under Section 375 IPC.

Legislation cited

Indian Penal Code, 1860s. 375, s. 376, s. 90

Subjects

rapeconsentSection 90 IPCpromise of marriagemisconception of factacquittalIndian Penal Codefraudvoluntary consent

Judgment

UDAY A
v.
STATE OF KARNATAKA

FEBRUARY 19, 2003

[N. SANTOSH HEGDE AND B.P. SINGH, JJ.] B

Penal Code, 1860-Sections 376 and 90-Rape-Prosecutrix aged 19
years alleging that accused was .having sexual intercourse with her, inducing
to consent on the promise that he would marry her-Accused failing in his C
promise and prosecutrix becoming pregnant-Complaint under Section 376-
Conviction-High Court upholding the same-Justification of-Held: Evidence
on record leads to the conclusion that prosecutrix freely, voluntarily and
consciously consented to having sexual intercourse with the accused and her
consent was not in consequence of any misconception offact-Also there is
no evidence to prove that accused never intended to marry her thus conviction D
set aside.

Section 90-Consent known to be given in fear or misconception--
Application of-Discussed

According to the prosecutrix-aged 19 years, appellant had sexual E
intercourse with her. Appellant induced her to consent on the promise that
he shall marry her. Under such misconception for several months
prosecutrix, who claimed to be deeply in love with the appellant, continued
to have sexual intercourse with him. Consequently she became pregnant
and then also the appellant did not marry the prosecutrix though he had
promised on many occasions. Prosecutrix then filed a complaint against F
the appellant under Section 376 IPC. Sessions Judge convicted and
sentenced the appellant for the offence of rape. High Court upheld the
conviction. Hence the present appeal.

Appellant contended that one has to look to Section 375 alone for G
finding out whether the offence of rape had been committed; that even
under Sectio'n 90 the consent is vitiated· only if it is given under a
misconception of fact; that a belief that the promise of marriage was meant
to be fulfilled is not a misconception of fact; that the question of
misconception of fact will arise only if the act consented to, is believed by
231 H
232 SUPREME COURT REPORTS [2003] 2 S.C.R.

A the person consenting to be something else, and on that pretext sexual
intercourse is committed; and that in such cases it cannot be said that
victim consented to sexual intercourse.

Allowing the appeal, the Court

B HELD: 1.1. The consent given by the prosecutrix to sexual
intercourse with a person with whom she is deeply in love on a promise
that he would marry her on a later date, cannot be said to be given under
a misconception of fact and a false promise is not a misconception of fact
within the meaning of the Penal Code. Further there is no strait jacket
formula for determining whether consent given by the prosecutrix to
C sexual 'intercourse is voluntary, or whether it Is given under a
misconception of fact. In the ultimate analysis, the tests laid down by the
Courts provide at best guidance to the judicial mind while considering a
question of consent, but the Court must, in each case, consider th~ evidence
before it and the surrounding circumstances, before reaching a conclusion,
D because each case has its own peculiar facts which may have a bearing
on the question whether the consent was voluntary, or was given under a
misconception of fact. It must also weigh the evidence keeping in view the
fact that the burden is on the prosecution to prove each and every
ingredient of the offence, absence of consent being one of them. [234-E-G]

E 1.2. In the instant case, the prosecutrix was a grown up girl studying
in a college. She was deeply in love with the appellant. She was, however,
aware of the fact that since they belonged to different castes, marriage
was not possible. In any event, the proposal for their marriage was bound
to be seriously opposed by their family members. She admits having told
so to the appellant when he proposed to her the first time. She had
F sufficient intelligence to understand the significance and moral quality of
the act she was consenting to. That is why she kept it a secret as long as
she could. Despite this, she did not resist the overtures of the appellant,
and in fact succumbed to it. She thus freely exercised a choice between
resistance and assent. She must have known the consequences of the act,
G particularly when she was conscious of the fact that their marriage may
not take place at all on account of caste considerations. All these
circumstances lead to the conclusion that she freely, voluntarily, and
consciously consented to having sexual intercourse with the appellant, and
her consent was not in consequence of any misconception of fact. Further
there is no evidence to prove conclusively that the appellant never intended
H to marry her. (244-D-G]
UDAYv. STATE 233

- 1.3. For the application of Section 90 IPC in a case of this nature 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
A

had reason tu believe that the cunsent was given in cunsequence uf such
misconceptiun. In the instant case promise to marry induced the
prosecutrix to consent to having sexual intercourse with the appellant is
doubtful. There is hardly any evidence to prove that the appellant knew, B
or had reason to believe, that the prosecutrix had consented to having
sexual intercourse with him only as a consequence of her belief, based on
his promise, that they will get married in due course. On the contrary the
circumstances of the case tend to support the conclusion that the appellant
had reason to believe that the consent given by the prosecutrix was the C
result of their deep love for each other which is not disputed. They met
often, and it does appear that the prosecutrix permitted him liberties
which, If at all, is permitted only to a person with whom one is in deep
love, they promise to each other several times that come what may, they
will get married. Prosecutrix stated that the appellant also made such a
promise on more than one occasion. In such circumstances, the promise D
loses all significance, particularly when they are overcome with emotions
and passion and find themselves in situations and circumstances where
they, in a weak moment, succumb to the temptation of having sexual
relationship. In the instant case, the prosecutrix willingly consented to
having sexual intercourse with the appellant with whom she was deeply E
in love, not because he promised to marry her, but because she also desired
it. Thus, it would be very difficult to impute to the appellant knowledge
that the prosecutrix had. consented in consequence of a misconception of
fact arising from his promise. In any event, it was not possible for the
appellant to know what was in the mind of the prosecutrix when she
consented, because there were more reasons than one for her to consent. F
(245-A-HJ

Rao Harnarain Singh v. State, AIR [1958) Punjab 123; Vijayan Pillai
@ Babu v. State of Kera/a, (1989) 2 K.L.J. 234; In Re Anthony alias
Baklhavatsalu, AIR (1960) Madras 308; Arjan Ram v. The State, AIR (1960)
Punjab 303; Gopi Shankar v. State, AIR (1967) Raj. 159; Bhimrao Harnooji G
Wanjari v. State of Maharashtra, 1975 Mah L J 660; Jayanti Rani Panda v.
State of West Bengal and Anr., (1984) Cd. L.J.1535; Hari Majhi v. The State,
(1990) Crl. L.J. 650; Abhoy Pradhan v. State of West Bengal, (1999) Crl.
L.J. 3534; State of Karnataka v. Anthonidas, ILR (2000) Kar. 266; Nilambar
Gouda v. The State and Anr., (1982) Crl. L.J. NOC 172 (Orissa); Saleha H
234 SUPREME COURT REPORTS (2003] 2 S.C.R.

A Khatoon v. State of Bihar and Anr., (1989) Crl. L.J. 202 and State of H.P. ..
v. Mango Ram, [2000) 7 SCC 224, referred to.

Holman v. The Queen, [1970) W.A.R. 2; R. v. Olugboja, (19811 3
W.L.R. 585 and Queen v. Clarence, [18881 22 QBD 23 and People v. Perry,
26 Cal. App. 143, referred to.
B
Stroud's Judicial Dictionary, (Fifth Edition) p. 510 and Permanent
Edition Volume SA, p. 205, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 336
of 1996.
c From the Judgment and Order dated 20.4.J 995 of the Karnataka High
Court in Crl. A. No. 428 of 1992

R.S. Hegde and P.P. Singh, for the Appellant.

Sanjay R. Hegde and Satya Mitra, for the Respondent.
D
The Judgment Qf the Court was delivered by

B.P. SINGH, J. This appeal by special leave is directed against the
judgment and order of the High Court of Karnataka at Bangalore dated 20th
April, 1995 in Criminal Appeal No. 428 of 1992 whereby the High Court
E while dismissing the appeal and upholding the conviction of the appellant
under Section 376 of the Indian Penal Code reduced the sentence to two
years rigorous imprisonment and a fine of Rs. 5000 and in default, to undergo
further rigorous imprisonment for 6 months. Earlier the Sessions Judge, Karwar
before whom the appellant was tried in Sessions Case No.16/90, by his
F judgment and order dated 27th November, 1992 sentenced the appellant to
seven years rigorous imprisonment under Section 376 of the Indian Penal
Code and a fine of Rs. 20,000 and in default, to undergo further rigorous
imprisonment for six months. He also directed that out of the fine, if realized,
a sum of Rs. 10,000 be given to the prosecutrix/complainant. The trial court
as well as the High Court have concurrently held that though the prosecutrix
G had consented to sexual intercourse with the appellant, the consent was
obtained by fraud and deception inasmuch as the appellant induced her to
consent on the promise that he shall marry her. It was under such mis-
.conception that for several months thereafter the prosecutrix, who claimed to
be deeply in love with the accused, continued to have sexual intercourse with
H him till it was discovered that she was pregnant. When the appellant did not
UDA Y v. ST ATE [B.P. SINGH, J.] 235
agree to the performance of the marriage, at that stage, the complainant A
lodged a report in the police station pursuant to which investigation was
taken up and the.appellant put up for trial before the Sessions Judge, Karwar.

It is not in dispute that the prosecutrix, PW-I was aged about 19 years
on the date of occurrence i.e. in the last week of August, 1988 or the first
week of September, 1988. She deposed that her date of birth was 6th August, B
1969. The appellant also was a young man of about 20-21 years of age when
the occurrence took place, as he claimed to be 25 years of age in the year
1992 when he was examined under Section 313 of the Code of Criminal
Procedure. There is, therefore, no dispute that the prosecutrix was above the

-·
·~

'
age of 16 on the date of occurrence. The prosecutrix was studying in a
college and residing with her parents, brothers and sisters in Majali Gaongeri.
C
In her deposition, she stated that the appellant was a friend of her elder
brother Jagdish, PW.3. The appellant resided in the neighbourhood and used
to frequently visit her house almost daily and used to talk to her also, apart
from other members of the family. A friendship developed between them and
one day, the appellant proposed to her to marry him. _The prosecutrix told D
him that since they belong to different castes such a marriage was not possible.
The prosecutrix is a native of Tamilnadu and belongs to the Goundar
community, while the appellant claims to be a Daivanya Brahim. However,
it is not disputed that they fell· in love with each other, but the prosecutrix
avoided talking to the appellant In presence of her parents.
E
In the last week of August, 1988 or first week of September, 1988 at
about 12 O' clock in the night when she was studying, the appellant came to
·. the window of the room and called her out to talk to her. Since she was
deeply in love with him, she responded to his invitation and thereafter they
went to the place where the house of the appellant was under construction. F
The appellant talked to her and thereafter kissed her and embraced her and
promised to marry her. He· also had sexual intercourse with her. She was not
willing to have sexual intercourse, but in the circumstances she consented to
the sexual intercourse because the accused had promised to marry her. They
I
continued to meet thereafter and went out frequently. During this period as
well, the appellant had stated many times that he would marry her. She also G
admits that she had sexual intercourse with him about 15-20. times and that
they used to have sexual intercourse once or twice a week. She also admits
that they were both noticed together by several persons whom she lias named
in her deposition. When one Vanamala, who had noticed her, questioned her
about the affair, she had 1told her that they were madly in love with each other H
236 SUPREME COURT REPORTS [2003] 2 S.C.R.

A and that the appellant had promised to marry her. She also requested her not
to reveal this fact to anyone.

According to the prosecutrix whenever she talked to the appellant about
the marriage, he assured her that he would marry her after completion of the
construction of the house, and that it would be a registered marriage. This
B state of affairs continued till she discovered that she was pregnant. She told
the appellant about the pregnancy but he assured her that she should not
worry and that he will marry her after sometime. The suspicion of her mother
was aroused during the 6th month ·of pregnancy .ind she was, therefore,
compelled to disclose everything to her mother. She told the appellant about
C her having disclosed everything to her mother, and the appellant again assured
her that he would take her to some other place and get married. Gradually
when others came to know about the affair and her pregnancy, her brpther,
PW.3 enquired of the appellant as to whether he would marry her. The
appellant told her brother that he would marry her, but this fact should not
be revealed to his (Appellant's) parents. In the 8th month of pregnancy the
D appellant asked her to be ready to go with him and it was planned that they
would leave early in the morning. The appellant did not tum up but the
cousin of the appellant informed her that the appellant had gone to Sangli. ..
Eight days later when the appellant returned from Sangli, her brother again
asked the appellant as to whether he would marry her. The appellant told her
E brother to keep her at some other place and that he would bear her maintenance
expenses and after her delivery and completion of the construction of his
house, he would marry her. This suggestion was not acceptable to the
prosecutrix and her brother and this angered the appellant. Next day when
her brother wanted to nieet the appellant he did not come out of his house.
Thereafter followed a quarrel between female members of the two families.
F Since the appellant did not marry her as promised, she lodged the complaint
with the police on 12th May, 1989 which was recorded by PW.IO, PSI. She
gave birth to a child on 29th May, 1989. On 13th May, 1989 she was examined
by the doctor, PW.14 who gave the opinion that the prosecutrix was about
18-20 years of age. In cross-examination questions were put to her about her
G intimacy with other boys which she denied.
PW.2, the mother of the prosecutrix and PW.3, the brother of the
prosecutrix, were examined, apart from other witnesses, to prove the case of
the prosecution.

The defence of the appellant was one of outright denial.
H ------
UDA Y v. STATE [B.P. SINGH, J.] 237
The Sessions Judge accepting the evidence of the prosecutrix concluded A
that though she had consented to have sexual intercourse with the appellant,
that consent was not consent within the meaning of Section 375 Secondly
·!PC having regard to Section 90. According to him the consent was obtained
by making a false promise of marriage and, therefore, it was a consent obtained
by fraud and mis-representation. He, therefore, held that in the facts and B
circumstances of the case, the appellant had sexual intercourse with the
prosecutrix without her consent and was, therefore, guilty of the offence of
rape punishable under Section 376 of the Indian Penal Code. The High Court
in appeal affirmed the finding of the trial court substantially for the same
reasons.

We may at the threshold notice the relevant provisions of the Indian
c
Penal Code, namely Section 375 and Section 90 which read as follows :-

"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 :- D
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 E
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. F
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 G
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.
H
238 SUPREME COURT REPORTS (2003] 2 S.C.R.

A 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.

B 90. Consent known to be giwn under fear or misconception. • A
consent is not such a consent as it intended by any section of this
Code, if the consent js given by a person under fear of injury, or
under a misconception of faet, and if the person doing the act knows,
or has reason to believe, that the consent was given in consequence
of such fear of mlseonteption ; or
c Consent of insane person. • if the consent is 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
D Consent of child.· unless the contrary appears from the context,
ifthe consent is given by a person who is under twelve years of age."

Learned counsel for the appellant submitted that ii1 the context of Section
375 of the Indian Penal Code, which is a special provision, the general
provision namely Section 90 of the Indian Penal Code was not of much
E assistance to the prosecution. According to him Section 375 Thirdly, Fourthly
and Fifthly exhaustively enumerate the circumstances in which the consent
given by the prosecutrix is vitiated and does not amount to consent in law.
According to him one has to look to Section 375 alone for finding out
whether the offence of rape had been committed. Secondly, he submitted that
even under Section 90 of the Indian Penal Code the consent is vitiated only
F if it is given under a misconception of fact. A belief that the promise of
marriage was meant to be fulfilled is not a misconception of fact. The question
of misconception of fact will arise only if the act consented to, is believed
by the person consenting to be something else, and on that pretext sexual
intercourse is committed. In such cases it cannot be said that she consented
G to sexual intercourse. He sought to illustrate this point by reference to English
cases where a medical man had sexual intercourse with a girl who suffered
from a bonafide belief that she was being medically treated, or where under
pretence of performing surgery a surgeon had carnal intercourse with her. In
Stroud's Judicial Dictionary (Fifth Edition) page 510 "consent" has been
H given the following meaning:-
UDAYv. STATE [B.P. SINGH, J.] 239
"Consent is an act of reason, accompanied with deliberation, the A
mind weighing, as in a balance, the good and evil on each side."

It refers to the case of Holman v. The Queen, (1970] W.A.R. 2 wherein it was
held that "there does not necessarily have to be complete willingness to
constitute consent. A woman's consent to intercourse may be hesitant, reluctant
or grudging, but if she consciously permits it there is consent' ". Similar was B
the observation in R. v. O/ugboja : (1981] 3 W.L.R. 585 wherein it was
observed that "consent in rape covers states of mind ranging widely from
actual desire to reluctant acquiescence, and the issue of consent should not
be left to the jury without some further direction". Stephen, J. in Queen v.
Clarence: [1888] 22 QBD 23 observed - "It seems to me that the proposition C
that fraud vitiates consent in criminal matters is not true if taken to apply in
the fullest sense of the word, and without qualification. It is too short to be
true, as a mathematical formula is true." Wills, J. observed "the consent
obtained by fraud is not 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, D
he obtains her consent by fraud, but it would be childish to say that she did
not consent."

Some of the decisions referred to in Words and Phrases Permanent
Edition Volume BA at page 205 have held "that adult female's understanding
of nature and consequences of sexual act must be intelligent understanding E
to constitute 'consent'. Consent within penal law, defining rape, requires
exercise of intelligence based on knowledge of its significance and moral
quality and there must be a choice between resistance and assent. Legal
consent, which will be held sufficient in a prosecution for rape, assumes a
capacity to the person consenting to understand and appreciate the nature of F
the act committed, its immoral character, and the probable or natural
consequences which may attend it. (See: People v. Perry, 26 Cal: App. 143).

The Courts in India have by and large adopted these tests to discover
whether the consent was voluntary or whether it was vitiated so as not to be
legal consent. In Rao Harnarain Singh vs. State : AIR 1958 Punjab 123 it was G
observed :-

"A mere act of helpless resignation in the face of inevitable
compulsion, acquiescence, non-resistance, or passive giving in, when
volitional faculty is either clouded by fear or vitiated by duress, cannot
H
240 SUPREME COURT REPORTS [2003] 2 S.C.R.

A be deemed to be 'consent' as understood in law. Consent, on the part
of a woman as a defence to an allegation of a rape, requires voluntary
participation, not only after the exercise of intelligence, based on the
knowledge, of the significance and moral quality of the act, but after
having freely exercised a choice between resistance and assent.

B Submission of her body under the influence of fear or terror is
not consent. There is a difference between consent and submission.
Every consent involves a submission but the converse does not follow
and a mere act of submission does not involve consent. Consent of
the girl in order to relieve an act, of a criminal character like rape,
must be an act of reason, accompanie~ with deliberation, after the
c mind has weighed as in a balance, the good' and evil on each side,
with the existing capacity and power to withdraw the assent according
to one's will or pleasure."

The same view was expressed by the High Court of Kera/a in Vijayan
D Pillai@ Babu v. State of Kera/a, (1989) 2 K.L.J. 234. Balakrishnan, J.,-as
he then was, observed :-

"10. The vital question to be decided is whether the above
circumstances are sufficient to spell out consent on the part of PW. I.
In order to prove that there was consent on the part of the prosecutrix
E it must be established that she freely submitted herself while in free
and unconstrained position of her physical and mental power to act
in a manner she wanted. Consent is an act of reason accompanied by
deliberation, a mere act of helpless resignation in the face of inevitable
compulsion, non resistance and passive giving in cannot be deemed
to be "consent". Consent means active will in the mind of a person
F to permit the doing of the act of and knowledge of what is to be done,
or of the nature of the act that is being done is essential to a consent
to an act. Consent supposes a physical power to act, a moral power
of acting and a serious and determined and free. use of these powers.
Every consent to act involves submission, but is by no means follows
that a mere submission involves consent. In Jowitt's Dictionary of
G
English Law II Edn. Vol. I explains consent as follows :

'An act of reason accompanied with deliberation, the mind
weighing, as in a balance, the good or evil on either side. Consent
supposes three things - a physical power, a mental power and a free
H and serious use of them. Hence it· is that if consent be obtained by
UDA Y v. STA TE [B.P. SINGH, J.] 241
intimidation, force, mediated imposition, circumvention, surprise or A
undue influence, it is to be treated as a delusion, and not as a deliberate
and free act of the mind.

In re Anthony alias Bakthavatsalu : AIR 1960 Madras 308, Ramaswami,
J. in his concurring opinion fully agreed with the principle laid down in Rao
Harnarain Singh's case (supra) and went on to observe :- B
-- "A woman is said to consent only when she agrees to submit herself
while in free and unconstrained possession of her physical and moral
power to act in a manner she wanted. Consent implies the exercise of
a free and untrammeled right to forbid or withhold what is being
consented to; it always is a voluntary and conscious acceptance of C
what is proposed to be done by another and concurred in by the
former."
The same view has been reiterated by the Punjab High Court in Arjan
Ram v. The State, AIR (1960) Punjab 303 by the Rajasthan High Court in
Gopi Shan/car v. State, AIR (1967) Raj. 159 and by the Bombay High Court D
in Bhimrao Harnooji Wanjari v. State of Mahrashtra, (1975) Mah. L.J. 660.
The High Court of Calcutta has also consistently taken the view that the
failure to keep the promise on a future uncertain date does not always amount
to misconception of fact at the inception of the act itself. In order to come
within, the meaning of misconception of fact, the fact must have an immediate E
relevance. In Jayanti Rani Panda vs. State of West Bengal and another: 1984
Crl. L.J. 1535 the facts were so111ewhat similar. The accused was a teacher
of the local village school and used to visit the residence of the prosecutrix.
One day during the absence of the parents of the prosecutrix he expressed his
love for her and his desire to marry her. The prosecutrix was also willing and F
the accused promised to marry her once he obtained the consent of his parents.
Acting on such assurance the prosecutrix started cohabiting with the accused
and this continued for several months during which period the accused spent
several nights with her. Eventually when she conceived and insisted that the
marriage should be performed as quickly as possible, the accused suggested
an abortion and agreed to marry her later. Since the proposal was not acceptable G
to the prosecutrix, the accused disowned the promise and stopped visiting her
house. A Division Bench of the Calcutta High Court noticed the provisions
of Section 90 of the Indian Penal Code and concluded :-
"The failure to keep the promise at a future uncertain date due to
reasons not very clear on the evidence does not always amount to a H
r

242 SUPREME COURT REPORTS [2003) 2 S.C.R.

A misconception of fact at the inception of the act itself. In order to
come within the meaning of misconception of fact, the fact must have
an immediate relevance. The matter would have been different if the
consent was obtained by creating. a belief that they were already
married. In such a case the consent could be said to result from a
misconception of fact. But here the fact alleged is a promise to marry
B we do not know when. If a full grown girl consents to the act of
sexual intercourse on a promise of marriage and continues to indulge ,-----
in such activity until she becomes pregnant it is an act of promiscuity
on her part and not an act induced by misconception of fact. S. 90
!PC cannot be called in aid in such a case to pardon the act of the girl
c and fasten criminal liability on the other, unless the Court can be
assured that from the very inception the accused never really intended
to marry her."

The same view was reiterated in Hari Majhi v. The State, (1990) Cr!.
L.J. 650 and Abhoy Pradhan v. State of West Bengal, (1999) Cr!. L.J. 3534.
D
The impugned judgment and order in this appeal is by a learned Single
Judge of the High Court of Karnataka but it appears that in a recent judgment,
a Division Bench of the same High Court in State ofKarnataka v. Anthonidas,
ILR (2000) Kar. 266 has taken the contrary view. Similar is the view of the
E Orissa High Court in Nilambar Gouda v. The State and Anr., (1982) Cr!. L.
J. NOC 172 (Orissa)

Only one judgment of the Patna High Court was brought to our notice,
which appears to take a contrary view. (Saleha Khatoon vs. State of Bihar
and another: 1989 Cr!. L.J. 202). However, the observations in that judgment
F must be understood in the facts and circumstances of that case. That was a
case where the Magistrate instead of committing the case to the Court of
Sessions for trial, on similar allegations, proceeded to try the case himself for
the charge under Section 498 !PC and declined to commit the accused to the
Court of Sessions for trial for the offence under Section 376 !PC. This order
was challenged before the High Court and in those circumstances the Court
G held that iii the facts and circumstances of the case, having regard to the
narrow jurisdiction of the Magistrate under Section 209 Cr. P.C., he was not
required to balance and weigh the evidence as is done by the trial court. In
the facts· and circumstances of the case he ought to have committed the case
to the Court of Sessions for trfal under Section 376 IPC. In this background
H the learned Judge made the following observations :-
·4.,·
UDA Y v. STA TE [RP. SINGH, J.] 243
"The first point which attracts my attention is the second ingredient A
'without her consent'. Consent always means free will or voluntary
act. In this case consent was obtained on the basis of some fraud and
allurment or practicing deception upon the lady on the pretext that
ultimately she .will be married and under that pretext she allowed
opposite party No.2 to have sexual intercourse with her. Therefore,
this tainted consent or a consent of this nature which is based on B
deception and fraud, cannot be termed, prima facie, to conclude that
it was 'with consent'. Had the lady known that ultimately she would
be deserted, the facts and circumstances stated above and the materials
placed would go to show that she would have refrained from giving
such consent. Then a question would arise what was the purpose for C
which she gave consent. It was a fraud that was practiced on her or
she was deceived by giving false assurance. Such type of consent
must be termed to be consent obtained without her consent. Consent
obtained by deceitful means is no consent and comes within the
ambit of the ingredients of definition of rape."
D
We may only observe that another Single Judge of the Patna High
Court in 1990 BBCJ 530 while quashing a charge framed under Section 376
IPC has taken the contrary view following the Calcutta High Court judgment
in Jayanti Rani Panda (supra).

It therefore appears that the consensus of judicial opinion is in favour E
of the view that the consent given by the prosecutrix to sexual intercourse
with a person with whom she is deeply in love on a promise that he would
marry her on a later date, cannot be said to be given under a misconception
of fact. A false promise is not a misconception of fact with1n the meaning of
the Code. We are inclined to agree with this view, but we must add that there F
is no strait jacket formula for. determining whether consent given by the
prosecutrix to sexual intercourse is voluntary, or whether it is given under a
misconception of fact. In the ultimate analysis, the tests laid down by the
Courts provide at best guidance to the judicial mind while considering a
question of consent, but the Court must, in each case, consider the evidence
before it and the surrounding circumstances, before reaching a conclusion, G
because each case has its own peculiar facts which may have a bearing on
the question whether the consent was voluntary, or was given under a
misconception of fact. It must also weigh the evidence keeping in view the
fact that the burden is on the prosecution to prove each and every ingredient
of the offence, absence of consent being one of them. H
244 SUPREME COURT REPORTS [2003) 2 S.C.R.
•
A The approach to the subject of consent as indicated by the Punjab High
Court in Rao Har Narain Singh, (supra) and by the Kera/a High Court in
Vijayan Pillai, (supra) has found approval by this Court in State of H.P. v.
Mango Ram, [2000] 7 SCC 224. Balakrishnan, J. speaking for the Court
observed :·

B "The evidence as a whole indicates that there was resistance by the
prosecutrix and there was no voluntary participation by her for the
sexual act. Submission of the body under the fear of terror cannot be
construed as a consented sexual act. Consent for the purpose of Section
375 requires voluntary participation not only after the exercise of
intelligence based on the know ledge of the significance and moral
c quality of the act but after having fully exercised the choice between
resistance ·and assent. Whether there was consent or not, is to be
ascertained only on a careful study of all relevant circumstances."

Keeping in view the approach that the Court must adopt in such cases,
we shall now proceed to consider the evidence on record. In the instant case,
D
the prosecutrix was a grown up girl studying in a college. She was deeply in
love with the appellant. She was however aware of the fact that since they
belonged to different castes, marriage was not possible. In any event ·the
proposal for their marriage was bound to be seriously opposed by their family
members. She admits having told so to the appellant when he proposed to her
E the first time. She had sufficient intelligence to understand the significance
and moral quality of the act she was consenting to. That is why she kept it
a secret as long as she could. Despite this, she did not resist the overtures of "'1!ll!c

the appellant, and in fact succumbed to it. She thus freely exercised a choice
between resistance and assent. She must have known the consequences of the
act, particularly when she was conscious of the fact that their marriage may
F
not take place at all on account of caste considerations. All these circumstances
lead us to the conclusion that she freely, voluntarily, and consciously consented
to having sexual intercourse with the appellant, and her consent was not in
consequence of any misconception of fact.·

G There is another difficulty in the way of the prosecution. There is no
evidence to prove conclusively that the appellant never intended to marry .
her. Perhaps he wanted to, but was not able to gather enough courage to
disclose his intention to his family members for fear of strong opposition
from them. Even the prosecutrix stated that she had full faith in him. It
appears that the matter got complicated on account of the prosecutrix becoming
H pregnant. Therefore, on account of the resultant pressure of the prosecutrix
UDA Y v. STATE [B.P. SINGH, J.] 245
and her brother the appellant distanced himself from her. A
There is yet another difficulty which faces the prosecution in this case.
In a case of this nature two conditions must be fulfilled for the application
of Section 90 IPC. Firstly, it must be shown that the consent was given under
a misconception of fact. Secondly, it must be proved that the person who
obtained the consent knew, or had reason to believe that the consent was B
given in consequence of such misconception. We have serious doubts that
the promise to marry induced the prosecutrix to consent to having sexual
intercourse with the appellant. She knew, as we have observed earlier, that
her marriage with the appellant was difficult on account of caste considerations.
The proposal was bound to meet with stiff opposition from members of both C
families. There was therefore a distinct possibility, of which she was clearly
conscious, that the marriage may not take place at all despite the promise of
the appellant. The question still remains whether even if it were so, the
appellant knew, or had reason to believe, that the prosecutrix had consented
to having sexual intercourse with him only as a consequence of her belief,
based on his promise, that they will get married in due course. There is D
hardly any evidence to prove this fact. On the contrary the circumstances of
the case tend to support the conclusion that the appellant had reason to
believe that the consent given by the prosecutrix was the result of their <leep
love for each other. It is not disputed that they were deeply in love. They met
often, and it does appear that the prosecutrix permitted him liberties which, E.
if at all, is permitted only to a person with whom one is in deep love. It is

- also not without significance that the prosecutrix· stealthily went out with the
appellant to a lonely place at 12 O'clock in the night. It usually happens in
such cases, when two young persons are madly in love, that they promise to
each other several times that come what may, they will get married. As stated
by the prosecutrix the appellant also made such a promise on more than one F
occasion. In such circumstances the promise loses all significance, particularly
when they are over come with emotions and passion and find themselves in
• situations and circumstances where they, in a weak moment, succumb to the
'
' temptation of having sexual relationship. This is what appears to have happened
I in this case as well, and the prosecutrix willingly consented to having sexual G
intercourse with the appellant with whom she was deeply in love, not because
he promised to marry her, but because she also desired it. In these
circumstances it would be very difficult to impute to the appellant knowledge
that the prosecutrix had consented in consequence of a misconception of fact
arising from his promise. In any event, it was not possible for the appellant
to know what was in the mind of the prosecutrix when she consented, because H
246 SUPREME COURT REPORTS [2003) 2 S.C.R.

A there were inore reasons than one for her to consent.
In view of our findings aforesaid, we do not consider it necessary to
consider the question as to whether in a case of rape the misconception of
fact must be confined to the circumstances falling under Section 375 Fourthly
and Fifthly, or whether consent given under misconception of fact contemplated
B by Section 90 has a wider application so as to include circumstances not
enumerated in Section 375 IPC.

In the result, this appeal must succeed, and is accordingly allowed. The
impugned judgment and order convicting and sentencing the appellant for the
C offence punishable under Section 376 IPC is set aside, and the appellant
stands acquitted of the charge. Since the appellant was granted exemption
from surrendering when the special leave was granted, no further order for
his release is necessary.

N.J. Appeal allowed.