Orissa High Court ruling – sex on false promise of marriage is not rape

Critical Analysis by SAURAV KUMAR1

Orissa High Court, G Achyut Kumar v. the State of Odisha2,

The petitioner approached the Orissa High Court for the Bail application. The bail application was accepted by the court and respondent fulfilled all conditions required to grant bail. Therefore Bail was given. There is no issue before the court to rule over sex on the false promise of marriage is rape or not, as in the session court issue was already going on. The statement which was given by the court, not in a broader proposition of law and; if it so then would be a final judgement, not bail application.

Essentials of sec 375 of Indian Penal Code, 1860:-

-Against the will of the women

-Without her consent

From 3 to 7 description of consent, where those consents are not considered as consent.

-Consent under fear of death or injury.

-Representing as a lawful husband but he is

-She is unsound mind and not capable to take decision what is right or what is

-She is below 18 years

-She is not in a position to communicate her

From the above-mentioned grounds that sex on a false promise of marriage could not be considered as rape.

Now, what statue provision sec 7 and sec 9 of IPC, 1860 says:-

Sec 7 Sense of expression once explained- Every expression which is explained in any part of this code is used in every part of this code in conformity with the explanation.

Sec 90 defines consent given in negative language, any girl gives consent in the fear of injury or death and under a misconception of fact is not termed as consent.

The misconception of fact by the apex court

 In English law Queens v. Clarence3,

The council observed that stranger man gave fake currency to women and go for sex. It could be inferred that there was fraudulent conduct on the part of stranger man and it could not be inferred that she did not give the consent.

Yadla Srinivasa Rao v. State of AP4, The High Court held that 7 years of rigorous imprisonment and Supreme Court also conferred that judgement. Since beginning false marriage was fraudulent. If he does make her promise than the girl does not indulge in such activities. Taking such consent is fraud and referred sec 90 of IPC,1860. When consent was taken under a misconception of fact or under threat of injury or death such consent are not valid. The burden of proof is on accused of proof valid consent.

Pradeep Kumar v. State of Bihar5, SC clearly speaks that never we say that in a broader interpretation of a law that misconception of fact………………, There is no straight formula it depends upon the facts and circumstances of the case to prove that promise taken was false since the beginning or not.

Deepak Gulati v. State of Haryana6, Session court and High Court held 7 years rigorous imprisonment but Supreme Court overruled that judgement and observed that promise is no misconception of fact and he was innocent. The intention was clear that he was taking her Ambala to marry her and in bus stand police arrests him on kidnapping (FIR lodged by her father). Inability to marry which is beyond his control. Therefore, it could not be called rape.

State of UP v. Naushad7

The petitioner had been in contact with the prosecutrix through the social media platform “Facebook” since 2013, and eventually, the petitioner asked her to marry him. Rajeev Sharma, the petitioner, had after the fixation of marriage asked the prosecutrix for a physical relationship on the pretext of marriage. Once the marriage was fixed and physical relationship established between the two, he fled away right before the marriage was to take place. The complainant after a few months received a call from Rajeev Sharma asking her to come to Delhi and get married there.

On recording the above-stated facts and circumstances of the case, it is clear that the only want of the petitioner was to satisfy his lust which constitutes rape in this case, as the petitioner had promised marriage to the complainant but did not fulfil it. The High Court set aside the order of Session Court and held him innocent whereas SC overruled the HC judgment and said session court was right and gave him life imprisonment. The Court observed that the consent in the present case was not “voluntary”, it was under the misconception of fact which certainly amounts to “rape”. The Court also concluded that the petitioner invaded the prosecutrix’s person by indulging in sexual intercourse in order to appease his lust.

In this case, consent to marry was false since the beginning.

Anurag Soni v. State of Chattisgarh8,

Facts of the case

At the time of the incident, the prosecutrix was the resident of Koni, district Bilaspur and was doing her pharmacy studies from Bhilai. The appellant was a junior doctor working at a government hospital in Malkharoda. The prosecutrix and the appellant had known each other since 2009 and were in a love affair. According to the prosecutor’s side of the story, the appellant showed his desire to meet the prosecutrix and therefore the prosecutrix on 29.04.13 arrived at the appellant’s home. She stayed there from 2 pm, 29.04.13 to 3 pm, 30.04.13. During her stay at the appellant’s house, the appellant showed his desire to have sexual intercourse but the prosecutrix was reluctant and was refusing repeatedly. The prosecutrix finally gave her consent to have sexual intercourse with the appellant on the pretext of marriage between the two.

The appellant had ensured the prosecutrix that he will talk to his family about their marriage on 1st or 2nd May 2013. The appellant also asked her not to tell anybody about the incident. The prosecutrix then repeatedly asked the appellant between 2.05.13 to 05.05.13 about their marriage but received no valid response. And therefore she finally disclosed all that happened to her parents and her parents went to the appellant’s parents. Both the family after discussing the issue decided that the couple should get married since no other option is left.

But later on, the appellant refused to marry the prosecutrix and it revealed that the appellant was keeping the prosecutrix and her family members in the dark and had married another girl two months back.

Subsequent to this the prosecutrix filed a case of rape on the pretext of marriage under Section 376 of IPC in the Malkharoda sessions court. The learned Session Court held that the consent of the prosecutrix was taken by misrepresentation and hence convicted the appellant under Section 376 and punished him with 10 years of rigorous imprisonment.

The court, in this case, has given a new dimension to the word “consent”. The Supreme Court in this case held that making a false promise of marriage to have a sexual relationship would amount to rape. So, if a girl has consented to have sexual intercourse on the pretext of marriage, which turns out to be fraud, then the consent so obtained would not be considered as a valid consent considering Section 90 of IPC

Conclusion/Remark:

From the above case laws discussion, it was clear that the intention of the individual to make promise was fraudulent since the beginning. That consent comes under the roof of a misconception of fact whereas from beginning intention was clear that he wants to marry but subsequently circumstances which are beyond his control then he was innocent.

Therefore, It was difficult for both the prosecution and the respondent to prove their case. Also, it was equally difficult for the court to cite material in regard to this. Absence of precedents gave focus on the background, context and facts of the case. All material importance was given to the facts and circumstances which lead to the incident.

Though the judgment has faced criticism as well, it will seem right if seen in the context it is delivered in. consent plays the most pivotal role in a relationship and if it is based upon fraud and misconception, then it can not only affect a girl physically but emotionally as well. All the aspects of a story are kept in mind while delivering a judgment. And now it would be interesting to know whether it is a full stop on this issue or any new pronouncements would be made.

So, News reports on Honourable Orissa High Court ruling – sex on false promise of marriage is not rape was vague and misleading.

1 Central University of South Bihar, BA LLB(H),4th Year

2 CRLA No. 940 of 2019 and Date of Order 21.05.2020

3 WH (1882) QBD 23

4 AIR 2006(11) SCC 615

5 AIR 2007 SC 3059

6 AIR (2013)7 SCC 675

7 AIR 2014 SC 384

8 CRLA NO. 629 2019 Date of order, 9 April 2019

Leave a Comment

Your email address will not be published.

%d bloggers like this: