The Supreme Court on Wednesday clarified that sex on the false promise of marriage does not automatically amount to rape. The judgment given by Justices DY Chandrachud and Indira Banerjee states: “The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance or bear a direct nexus to the woman's decision to engage in the sexual act.” 

The court made the distinction between the breach of a promise and deceiving the woman. The judgment stated that in a situation where the promise made is false and was made with the intention of deceiving the woman, it is not consensual. On the other hand, the judges said that a breach of promise cannot be a false promise. 

“To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The ‘consent’ of a woman under Section 375 [Rape] is vitiated on the ground of a ‘misconception of fact’ where such misconception was the basis for her choosing to engage in the said act,” the judgment stated. 

The woman in this matter had moved court that the man had sexual relations with her on the pretext of marriage, but the court observed that there was no indication that he had intended to deceive her, or that the woman engaged in sexual relations on the basis of marriage. 

“The appellant’s failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter,” the order in this matter states. 

In April, the Supreme Court had said that sex on the pretext of marriage was rape. In that case, the man had engaged in a sexual relationship with the woman on the promise of marrying her. “It was a clear case of cheating and deception,” the court then said.