Law That Sex On False Promise To Marriage Amounts To Rape Appears To Be Erroneous, Deserves A Relook: Orissa High Court

The Orissa High Court recently doubted the law holding that sex on false promise of marriage amounts to rape.The Single Judge Bench of Dr. Justice Sanjeeb Kumar Panigrahi questioned the rationality of 'automatic extension' of Section 90 of the Indian Penal Code (IPC) to determine the validity of consent for sex on false promise of marriage and called for a ‘serious relook’ of the same. “Nonetheless, it radiates from the above discussion that the law is well settled that consent obtained on a false promise to marry is not a valid consent. Hence, the automatic extension of provisions of Section 90 of I.P.C. to determine the effect of a consent under Section 375 of I.P.C. deserves a serious relook. The law holding that false promise to marriage amounts to rape appears to be erroneous.” Notably, Section 90 of the IPC provides: “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.” Factual Background On 12.01.20, the petitioner eloped with the victim and went to Bhubaneswar with a promise to marry her. He had physical relationship with her for several days. However, after some days, he abandoned her and escaped. After getting information from the victim, her father and brother proceeded to Bhubaneswar and rescued her. On 03.02.2020, when the father of the victim brought such fact to the notice of the father of the petitioner, the latter abused them and also threatened with dire consequences in case it is reported to the police. Contentions Debasnan Das, counsel for the petitioner pointed out that the victim is a major and she went to Bhubaneswar with the petitioner on her own volition. Further, he highlighted, she did not mention the exact date of the alleged incident in the FIR. Again, he submitted that the medical report does not support the allegations of forceful sexual assault. Therefore, he contended, the petitioner cannot be held liable under Section 376(2)(n), IPC. Having regard for the surrounding circumstances, he prayed to release the petitioner on bail. On the other side, the Additional Government Advocate raised objection to the above prayer considering the nature and gravity of allegations against the petitioner. He argued that the petitioner took the victim with him and repeatedly committed sexual intercourse on her with an assurance of marriage. He submitted that the petitioner also clicked some private photos of the victim. Thereafter, he escaped leaving her behind. Thus, he contended that the circumstances of the case establish a prima facie case under Section 376 IPC, along with other offences. Court’s Observations The Court doubted the allegations that the petitioner committed forced sexual assault on the victim, captured photos of her naked body and subsequently, abandoned her. “The prima facie look of the medical report suggests that there was no forcible sexual intercourse though it is a matter of trial. Similarly, medical report suggests that the victim girl was not pregnant at the time of her medical examination. Truthfulness or falsity of the allegations, essentially pertains to the realm of evidence and the same cannot be pre-judged at this initial stage which warrants a trial to establish”, the Court observed. Further, the Court was of the view that as the victim was a major and was having a sound mind, it cannot be said that a person induced her into a physical relationship under a false assurance of marriage. “There could be a possibility of experimentation with erotic asphyxiation which is very much part of their sexual autonomy. It is an undenying fact that our society is still largely conservative when it comes to matters of sex and sexuality. The virginity is a prized element. Even if such relationship existed, though it is unequivocally denied by the Petitioner, a consensual relationship without even any assurance, obviously will not attract the offence under Section 376 of the Indian Penal Code”, the Court emphatically said. The Bench discussed a catena of rulings by the Apex Court which govern the field of law. It, inter alia, made reference to Yedla Srinibas v. State of Andhra Pradesh, (2006) 11 SCC 615 Anurag Soni v. State of Chhattisgarh, (2019) 6 Scale 211 and Pramod Suryabhan Pawar v. The State of Maharashtra & Ors., (2019) 9 SCC 608. After going through the decisions, the Bench observed: “The intention of the law makers is clear on this issue. The rape laws should not be used to regulate intimate relationships, especially in cases where women have agency and are entering a relationship by choice. It is also equally disturbing, many of the complaints come from socially disadvantaged and poor segment of...

Law That Sex On False Promise To Marriage Amounts To Rape Appears To Be Erroneous, Deserves A Relook: Orissa High Court

Jyoti Prakash Dutta

Tags