A ‘consent’ based on misconception of facts is not a ‘consent’ in the eyes of the law. In the context of a promise to marry, there is a distinction between a false promise given on the understanding by the maker that it will be broken and breach of a promise which is made in good faith but subsequently broken.

Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a misconception of fact that vitiates the woman’s ‘consent’ under Section 375.

“To establish whether the ‘consent’ was vitiated by a misconception of fact arising out of a promise to marry, two propositions must be established. 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.”

– Hon’ble Justice Dr. D.Y. Chandrachud, Pramod Suryabhan Pawar v. State of Maharashtra, [Criminal Appeal No. 1165 of 2019].

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Court in Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608 examined interplay between Section 375 and Section 90 in context of ‘consent’ and held, ‘consent’ with respect to Section 375 involves an active understanding of circumstances, actions and consequences. An individual who makes a reasoned choice to act, after evaluating various alternative actions (or inaction) as well as various possible consequences flowing from such action (or inaction), ‘consents’ to such action.

– Hon’ble Justice Ujjal Bhuyan, Shiv Pratap Singh Rana v. State of Madhya Pradesh, [Criminal Appeal Nk. 1552 of 2023] decided on 08.07.2024.

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We find, there is a growing tendency of resorting to initiation of criminal proceedings when relationships turn sour.

– Hon’ble Justice Satish Chandra Sharma, Biswajyoti Chatterjee v. State of West Bengal, [Special Leave Petition (Criminal) No. 4261 of 2024] decided on 07.04.2025.