Sexual Intercourse on the pretext of marriage

 

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

Santosh Kumar Nayak v. State of Odisha

Bail Application No: 2818 of 2021

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.”

 

Section 90 of the IPC provides:Sexual Intercourse

“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.”

In the present case:

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 the society, rural areas, who are often lured into sex by men on false promises of marriage. The rape law often fails to capture their plight.”

Justice Panigrahi held that automatic extension of Section 90 of IPC to determine the effect of a consent under Section 375 of IPC in such cases requires a serious relook as, according to him, it is an erroneous law to hold sex on false promise of marriage amounts to rape. He cited the Commentary on Criminal Law by Glanville William and said it supports his proposition of law.

“Since the framers of law have specifically provided the circumstances when ‘consent’ amounts to ‘no consent in terms of Section 375 of I.P.C., hence consent for the sexual act on the pretext of marriage is not one of the circumstances mentioned under Section 375 of I.P.C.”, the Court reverberated.

Accordingly, the bail application of the petitioner was allowed observing that the law discussed above has ‘potency’ to come to the rescue of the petitioner.

Pertinent to mention, it is not the first time Justice S.K. Panigrahi is flagging this issue. While deciding a similar case in 2021, he had called for an amendment in legislation for clarity in this respect. He had then observed:

“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.”