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

G. Achyut Kumar v. State of Odisha CRLA No. 940 of 2019

“The failure to keep the promise at a future uncertain date due to reason not very clear does not always amount to a misconception of fact, the fact must have immediate relevance.”

Meaning of Consent as per IPC:

Section 90 IPC defines- consent known to be given under “fear or misconception” which reads as under:-

“Consent known to be given under fear or misconception.—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;”

Facts

The victim Ms. X, aged about 19, belongs to ST community lodged a complaint implicating the accused for committing the offences punishable under Sections 493/313/376 of I.P.C. read with Section 3 (2)(v) of SC & ST (Prevention of Atrocities) Act, 2015.

The appellant (accused) and the victim are the residents of the same village and known to each other. The Appellant had given her (victim) a mobile phone for facilitating regular communication and he had taken her for outing on a few occasions.
Appellant had promised to marry the victim and taking advantage of her innocence, he established a sexual relationship with her. In the meanwhile, the victim got pregnant twice and the accused got the pregnancy terminated by administering some medicine.

Appellant’s Argument

According to the learned counsel for the accused-appellant, the accused has never been involved in any manner in any criminal case and his antecedents are crystal clear. The victim is a major and a consenting party in the sexual relationship, if at all her version of love relationship was existing for the last four years, the offence under Section 376 of I.P.C. read with Sections 493/313 of I.P.C cannot be made out. The probability of a love relationship between the victim and the accused is slim and she is only a prisoner of imagination. He also stated that the allegation of administering medicines for termination of pregnancy is out and a false allegation and he has never done so.
Counsel appearing for the Victim/State, reveals that both the victim and the accused had acquaintance since long and they were having intimate relationships. The Appellant herein, taking advantage of her innocence and under the pretext of promise to marry established physical relationship with her which resulted in pregnancy twice in the past. However, she was coerced by the accused to terminate her pregnancy with the help of some medicines. Thus, the appellant has committed an offence punishable under Section 376 of I.P.C.

References by the Court

1. Vinod Kumar v. State of Kerala, (2014 5 SCC 678) The Supreme Court said in this case that to establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established:

(1)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.

(2)The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in a sexual act.”

2. In Uday Vs State of Karnataka reported in AIR 2003 SC 1639

“The Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.”

3. On contrary, Supreme court in its jugement (Referring to the case Anurag Soni vs The State Of Chhattisgarh on 9 April, 2019) said that “the consent for sexual intercourse obtained by a person by giving false promise of marriage would not excuse him from rape charges and the appellant-accused must face the consequences of the crime committed by him.”

“The Apex Court also has attempted to make a distinction between a promise which is unfulfilled and a promise which is false from the very beginning. The natural corollary that flows from it is that if a man can prove that he intended to marry the woman but changed his mind later, then it’s not rape. It’s only considered rape if it’s established that he had dubious intentions from the beginning of the relationship.”

Decision:

In the current case the court was of the view that 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 Court said that the law holding that false promise to marriage amounts to rape appears to be erroneous.

Therefore in a recent case Orissa High Court in G. Achyut Kumar v. State of Odisha passed a judegment that “Sex on false promise of marriage does not amount to rape. Victim being a major girl with sound mind and thus there is no question of anyone being in a position to induce her into a physical relationship under assurance of marriage – Therefore, false promise to marriage amounts to rape appears to be erroneous.” Hence, in this case Orissa High Court granted the bail to the appellant.