Marriage is something that needs the consent of a woman and a man. The union should be mutual. Culturally, marriage is considered a compulsory ceremony before pursuing any sexual activity. It is a legally and socially sanctioned union between a man and a woman. It gives legal identity and legal rights to both parties.

It is observed in some cases that the intercourse has taken place even before marriage, with the hope that the boy will marry the girl in the future.

But what if fake consent has been obtained merely to establish a sexual relation? Is such an act considered an offence? Is it punishable?

In a landmark judgment, Kashinath Narayan Gharat v. The state of Maharashtra (2021) has clearly stated and explained the offence of cheating and whether the refusal to marry after making a promise to marry would constitute cheating.


Case Summary

The complaint was filed under Sections 376 and 417 of the Indian Penal Code, 1860. There was a physical relationship between the accused and the woman. The woman complained that the accused had physical relations with her and refused to marry her. 

The appellant was convicted by a judgment and order passed by the learned Additional Session Judge under Section 417 of the Indian Penal Code for having a sexual relationship with the victim with a promise of marriage. He was sentenced to undergo rigorous imprisonment for one year and a fine of Rs. 5000/-. He was acquitted of the offence under Section 376 of the Indian Penal Code. 

Later, after analysing the evidence on record and the facts of the case, the High Court of Bombay acquitted the appellant of all charges, and the order was quashed and set aside.

Court Judgement

In this case, both the prosecutrix and the accused were known to each other for three years. It was observed that the consent for a physical relationship was not given under a misconception of the facts, nor was there any evidence indicating that the accused did not intend to marry her. It was further stated that, in the absence of evidence, merely refusing to marry her would not constitute an offence under Sections 376 and 417 of the Indian Penal Code.

Legal provisions

4 provisions –

  • Cheating
  • Rape
  • Consent under fear
  • Appeals from conviction


Section 417 of the Indian Penal Code deals with “cheating,” wherein dishonest concealment of facts is an offence. The offence is punishable with imprisonment of one year or with a fine or both.

If a person intentionally induces a person to do or omit to do any act which he would not have done if he was not deceived to do so and the act has caused harm to that person in body, mind, reputation or property, then the person who fraudulently, dishonestly or intentionally induced the other person is said to cheat. Any dishonest concealment of facts which can deceive a person to do an act which he would not have done otherwise is also cheating within the meaning of this section.


Rape is a sexual assault in which the victim is forced to have sex, without his or her consent and by using violence. Section 376 further explains that if a man tries to have sexual intercourse with a woman-

  1. Against her will;
  2. By not obtaining consent from her;
  3. If consent is obtained by fear for her or someone she is related to or interested in fear of death or injury;
  4. If she believes that the consent she is giving to is her husband even though he is not her husband;
  5. Consent of unsoundness of mind;
  6. Consent is given if she is under sixteen years of age.

Consent under fear or misconception 

Consent is when someone agrees to something. Such consent must be given without any fear of life or misconception. The consent that is given under fear of or injury to a person or death or misconception comes under this section.

In the present case, consensually establishing a physical relationship will not come under Section 90 of the Indian Penal Code. 

Appeals from convictions

Section 374 of the Code of Criminal Procedure deals with any appeals against any impugned judgment from an accused to Supreme Court and High Court who has been convicted on a trial.

False Promise

A false promise is something in which a promise is given intentionally to deceive the person into obtaining something or with full knowledge that such a promise will not be carried out. A false promise is given when the person giving such a promise wants something in return and he/she knows that unless and until such promise is not given he/she will not get that thing.

The false promise will be-

  1. By gaining something in return for the promise;
  2. An intention to not carry out the promise;
  3. To deceive someone into believing that the promise will be carried out in the future. 

Sexual intercourse on false promise to marry

As per the above understanding, a misconception of the facts is considered a false promise. When a person with the intention to have sexual intercourse gives a false promise to marry the girl and later refuses to marry, the false promise is a false promise and is punishable under sections 376 and 417 of the Indian Penal Code. 

Such intercourse under the pretext of a promise to marry is considered rape only if such promise was given solely for the purpose of having sexual intercourse with the girl.

 The misconception of facts would be-

  1. False promise or fraudulent misrepresentation;
  2. Mala fide intention behind giving the promise;
  3. It has to be in proximity to the time; 
  4. Should not be a deliberate choice of the victim.


YEAR 2020 – Maheshwar Tigga v. State of Jharkhand

The prosecutrix and the accused in this case were in a relationship for four years. The prosecutrix alleged that she was raped at the point of a knife. The accused later promised to marry her and continued to have a physical relationship with her. The relationship continued for four years. She even stated that they were engaged. During this time, she stayed with the accused at his house for fifteen days. The prosecutrix further stated that due to religious barriers, the marriage could not be established.

The question, in this case, was whether the promise given was under the misconception of facts and that he never wanted to marry.

 Things were taken into account:-

  1. The prosecutrix in her letter acknowledged that her parents used to beat her due to their relationship
  2. The religious barrier of the accused being a scheduled caste and the prosecutrix being a Christian
  3. The consent obtained was under fear or was given under a deep love affair.
  4. The proximity of time

Under Section 90 of the IPC, consent given under circumstances of fear or misconception of fact is not consent. It was observed from the evidence that a physical relationship was established consensually with the consent occasioned by their love affair. Further, the consent given under the misconception of facts has to be within a proximity of time and cannot be spread over four years. Additionally, the consent given was a conscious choice.

YEAR 2021 – Sonu @ Subhash Kumar v. State of Uttar Pradesh and Anr.

The Case as similar to the present case. In this case, an FIR was registered after the accused refused to marry her. The FIR was quashed, stating that there was no ground to prove the allegation that the promise to marry was based on false representation or inception.




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