The Orissa High Court recently comprising of a single judge bench of Justice SK Panigrahi underlined the need for amendment of the legislation to clearly define what constitutes sexual intercourse on pretext of a false promise of marriage. (Rinku Pradhan v. State of Odisha and another)
The bench observed that in present scenario, the law on matter of sexual intercourse on pretext of marriage 'lacks clarity' for conviction of the accused.
The bench stated, "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."
Facts of the case
The petitioner met with the claimant at the relative’s house and later reached her by telephone and tricked her into love with him. They formed an intimate friendship and the petitioner maintained a physical tie to her promising marriage. The woman alleged that the applicant had also given her medicine to abort the foetus after getting her pregnant twice. The applicant refused to marry the woman even after her parents gave consent for the marriage. Due to this, her parents fixed her marriage elsewhere.
The applicant then posted his personal pictures with the woman using fake Facebook accounts which tarnished the character of the woman and because of this, her marriage was broken. Based on such acts of the applicant, FIR was lodged under various sections of Indian Penal Code and Information Technology (Amendment) Act, 2008.
The petitioner has filed the “instant application under Section 439 of Cr. P.C. seeking bail in connection with alleged commission of offences punishable under Sections 376(1)/313/294/506 of the Indian Penal Code and Sections 66(E) and 67(A) of the Information Technology (Amendment) Act, 2008”.
Contention of the parties
Mr. N. Mishra, learned counsel for the petitioner, has submitted that the medical report does not reveal that the rape has been committed although the matter was reported for such purposes on 02.05.2020. Additionally, no prima facie case is established against the petitioner. Further, he has submitted that the petitioner is in no way connected with the case rather he has fallen prey to a conspiracy. The complainant being in rival terms has tried to victimise the petitioner. The present case has been foisted in a fabricated manner to harass the present petitioner. Hence, the petitioner should be granted bail.
Court's Observation and Judgment
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."
The Court 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."
In observing so, the Court placed reliance on the judgment in the case 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. It shall come within the ambit of the misconception of fact under Section 90 of IPC. Thus, such consent shall not excuse the accused from the charges for the offence of rape under Section 375 of IPC.
The Court observed, "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."
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.
The Court observed, "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."
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.
The Court while rejecting the bail application observed,
"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."
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