Constructive Rape

16 Pages Posted: 22 Dec 2006

See all articles by Sayak Chaudhuri

Sayak Chaudhuri

West Bengal National University of Juridical Sciences

Date Written: December 21, 2006

Abstract

The consensus of judicial opinion is in favour 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 her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Indian Penal Code. Though the courts have agreed with the view, it is important that there 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, 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.

Keywords: rape, marriage, consent, misconception of fact

JEL Classification: K14

Suggested Citation

Chaudhuri, Sayak, Constructive Rape (December 21, 2006). Available at SSRN: https://ssrn.com/abstract=953260 or http://dx.doi.org/10.2139/ssrn.953260

Sayak Chaudhuri (Contact Author)

West Bengal National University of Juridical Sciences ( email )

12, LB Block, Sector III
Salt Lake City
Kolkata, West Bengal 700 064
India

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