Orissa high court: Sex on false promise of marriage does not amount to rape

FACTS OF THE CASE:    

1. On a complaint lodged by a 19-year old girl the accused was booked under Section 376 of the Indian Penal Code for committing rape.
2. It was alleged that the accused had promised to marry her and taking advantage of her he established sexual relations with her and made her pregnant.
3. The woman got pregnant twice and the accused terminated her pregnancy both the times.
4. Court of Session rejected his bail plea and he moved to the High Court.

WHAT WAS HELD BY THE COURT?

• Granting the accused bail Justice Panigrahi said that the definition of rape as under Section 375 IPC makes it clear that the intention of the lawmakers is clear that the rape laws should not regulate intimate relationships especially where it is consensual. He also said that our society is still conservative when it comes to matters of sex and sexuality. Virginity is a prized element and a consensual relationship will not attract the offence under Section 376.
• Citing the case of Anurag Soni vs State of Chhattisgarh, where the Supreme Court distinguished between a promise which is unfulfilled and a promise which is false he stated that the natural corollary that flows is that if a man can prove that he intended to marry the woman but changed his mind later it won’t amount to rape. It is only considered as rape where he had dubious intentions from the very beginning of making such a promise.
• He also cited the case of Arak Sk vs state of West Bengal where the Calcutta high court had held that the act of abandoning the girl he promised to marry on her becoming pregnant is reprehensible but not a ground for rape under section 375.
• He also said 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 IPC to determine the effect of consent under Section 375 of IPC deserves a serious relook. The law holding that false promise to marriage amounts to rape appears to be erroneous”

SUPREME COURT’S VIEW ON THE FALSE PROMISE OF MARRIAGE AS A GROUND OF RAPE:

•  The apex court has held that every man cannot be held guilty when he fails to marry a woman despite a promise. A bench headed by Justice DY Chandra had made a distinction between a promise and a false promise. The bench held that 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 (rape) of the IPC.
• On the other hand it was held that a breach of promise cannot be said to be false as to establish it as false the maker should have no intention of upholding his word at the time of giving it. The bench also held that 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.