R*pe Arising From False Promise Of Marriage By Ben. Ijeoma Adigwe Esq

Rape is the most serious form of sexual assault. So serious is it that under the criminal code it is punishable with imprisonment for life with or without whipping.  In the offence of rape, the question of consent is very important. The kernel of the offence is the lack of consent of the prosecutrix. The prosecutor has to prove beyond reasonable doubt that the accused had carnal knowledge of the prosecutrix without her consent.

Under our laws, an agreement to marry is a binding legal contract, such that if a party can prove that there was in fact the actual existence of a promise to marry, and one party reneges, then a civil claim can be made. The Supreme Court of India has recently linked both concepts to hold that sex that is had on a false promise of marriage constitutes the offence of rape.

The case is Anurag Soni v. State of Chhattisgarh (Criminal Appeal No. 629 of 2019), where 13 witnesses were called by the prosecution while the defence presented 3 witnesses. The case for the prosecution was that the Prosecutrix (a pharmacy student) and the accused (a junior Doctor) had a love affair. The accused established physical relations with her on the pretext of marrying her. After that, he told her that he would talk to his parents about their marriage and that he would soon marry her. The prosecutrix repeatedly asked the accused about the marriage and when she did not receive any reply from the accused, she informed her parents.

Though talks about marriage between the prosecutrix and the accused happened between their families, and they planned the marriage on a particular day, the accused in the meanwhile, performed marriage with another girl. The Prosecutrix made a complaint and the accused was charged with rape. The court of first instance convicted the accused and sentenced him to 10 years imprisonment with hard labour. The High Court dismissed his appeal. On appeal to the Supreme Court, the Court dismissed his appeal.

The Supreme court observed that “ the prosecutor has been successful in proving the case that from the very beginning the accused never intended to marry the prosecutrix; he gave false promises to the prosecutrix to marry her and on such false promise he had a physical relation with the prosecutrix; the prosecutrix initially resisted, however, gave the consent relying upon the false promise of the accused that he will marry her and therefore, her consent can be said to be a consent on misconception of fact as per section 90 of the Indian penal code and such a consent shall not excuse the accused from the charge of rape and offence under section 375 of the Indian penal code.”

The court went further to hold that “the prosecution has been successful by leading cogent evidence that from the very inception, the accused had no intention to marry the victim and that he had mala fide motives and had made false promise only to satisfy his lust. But for the false promise by the accused to marry the prosecutrix, the prosecutrix would not have given the consent to have the physical relationship. It was a clear case of cheating and deception.”

The counsel to the accused finally made a plea that both the accused and the prosecutrix are now married (not with each other) and thus the accused may not be convicted. The bench in response refused the plea. The Supreme Court however reduced the sentence to 7 years imprisonment with hard labour. The Supreme Court held also that if a man can prove that he intended to marry the woman but changed his mind later, then it is not rape. It is considered rape if it is established that he had dubious intentions from the start.

The question could be asked if our courts can reach a similar verdict in Nigeria. It is submitted that such a verdict cannot be reached under our laws in Nigeria. This is because the laws of India on rape are different from that of Nigeria. Section 375 of the Indian Penal code in effect defines rape as sexual intercourse with a woman against her will, without her consent, by coercion ,misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 16 years of age.

In defining consent, section 90 of the Indian Penal Code states that ”a consent is not such a 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 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 unless the contrary appears from the context, if the consent is given by a person who is under 12 years of age.”

The above laws talk specifically of sexual intercourse by “misrepresentation” as constituting rape, and that a consent gotten under a misconception of facts is no consent. No such equivalent provisions exist in the Nigerian codes. Rather section 357 of the Nigerian criminal code defines rape as follows; “any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force, or by means of threat or intimidation of any kind, or by fear of harm, or by means of false and fraudulent representation as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of an offence which is called rape.”

Under the Northern Nigeria Penal code, no such provision exists as to make sex had on breach of promise of marriage or even misrepresentation to be rape. Section 282 of the Northern Nigeria Penal code provides as follows : “(1) A man is said to commit rape who, except in the case referred to in subsection (2) of this section, has sexual intercourse with a woman in any of the following circumstances—a)against her will; b)without her consent; c)with her consent, when her consent has been obtained by putting her in fear of death or of hurt; d)with her consent, when the man knows that he is not her husband and that her consent is given because she believed that he is another man to whom she is or believes herself to be lawfully married; e)with or without her consent, when she is under14 years of age or of unsound mind.  (2).sexual intercourse by a man with his own wife is not rape, if she has attained to puberty.”

Even under common law, a false promise to marry does not create any mistake on the nature of the act of sexual intercourse and therefore cannot vitiate consent of the victim.  So that the decision of the Indian Supreme Court in Anurag Soni v, State of Chhattisgarh (supra) is peculiar to the laws of India. A similar verdict cannot be had in Nigeria because our laws do not make provision for such. The Supreme Court however made a pronouncement which applies to all jurisdictions as follows:  “rape is the most morally and physically reprehensible crime in a society, an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life….it is tantamount to a serious blow to the supreme honour of a woman and offends both her esteem and dignity.”

Ben. Ijeoma Adigwe Esq., Director,Ministry of Justice, Asaba. +2348034917063