Need Amendment To Define What Constitutes Sexual Intercourse On False Promise To Marry: Orissa High Court

The Orissa High Court on Wednesday observed that the law holding that having sexual intercourse on a false promise to marry amounts to rape "appears to be erroneous". However, the Court went ahead to observe that the plight of the victim and probability of the accused in tarnishing her image need to be looked which deciding the question of bail.

The Court also observed that there is a need for amendment in the legislation defining what constitutes sexual intercourse with the prosecutrix on the prextext of false promise to marry.

The observation came from a single judge bench comprising of Justice SK Panigrahi which denied the bail application filed by a person accused of raping a woman after developing a romantic physical relationship with her on the false pretext of marrying her. 

The woman alleged that the applicant also caused her abortion by giving her medicine in the event of her getting pregnant twice. Thereafter, the applicant denied marrying her even after her parents contacted the family of the applicant in order to get their consent for marriage. However, the said proposal was denied. In view of this, the family of the woman fixed her marriage elsewhere.

It was also alleged that on 26th April 2020, the applicant posted their personal photographs using a fake accounts on Facebook created under her name by using a caption stating her to be of a bad character. As a result of this, her marriage was thereafter broken.

An FIR was thereafter lodge under sec. 376(1) (Punishment for Rape), 313 (Causing miscarriage without woman's consent), 294 (Obscene acts and songs) and 506 (Punishment for criminal intimidation) of the Indian Penal Code and sec. 66(E) (Punishment for violation of privacy) and 67(A) (Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form) of the Information Technology (Amendment) Act, 2008.

Law on Sexual Intercourse with Prosecutrix on false promise to marry lacks clarity

The Court while analyzing the inter relationship between sec. 90 (Consent known to be given under fear or misconception) and sec. 375 of IPC observed that even though the judiciary has dealt with the use of such concepts, however, "a certain viewpoint has not been reached and still under the shroud of confusion."

"There is a need for the amendment in the legislation defining what constitutes "sexual intercourse" with the prosecutrix on the "pretext of a false promise of marriage". As in the present scenario, the law on this matter lacks clarity for the conviction of the accused." The Court observed.

In observing so, the Court relied on the judgment of Anurag Soni vs. State of Chhattisgarh AIR 2019 SC 1857 wherein the Apex Court held that if an accused from the very beginning has given a promise of marriage without any intention to fulfill that promise and in lieu of such promise that the accused will marry her, then such consent would not amount to valid consent.

"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. However, it needs to be brought forward that many of the complaints come from socially disadvantaged and poor segments of the society and rural areas, women from these sections are often lured into sex by men on false promises of marriage and then dumped as soon as they get pregnant. The rape law often fails to capture their plight." The Court observed.

Furthermore, the Court observed that since sec. 375 provides specific circumstances as to when consent amounts to "no consent", the said provision "fails to mention that consent for sexual act on the pretext of marriage" as one of the circumstances.

"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, however, the plight of the victim and the probability of the accused tarnishing the dignity of the victim and her family need to be looked at while deliberating on the question of bail." The Court observed.

Observing that the perusal of FIR shows prima facie specific allegations against the applicant accused, the Court denied him bail after noting that there is a possibility of coercion of victim's family, repetition of similar type of offence and flee from justice.

"There are numerous other allegations as well in the charge sheet which are very detailed and need not be reproduced since the above extracts are sufficient to indicate that the allegations are specific and not of a general nature. They make out a prima facie case." the Court observed while rejecting the bail application.

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