Orissa High Court in Case titled G. Achyut Kumar v. State of Odisha on 21 May 2020 has observed that if the person engages in sex on a false promise of marriage than it does not constitutes rape though at the same time the conduct of the accused may not be approved socially. The court granted bail to the appellant/accused in the present case.
The judgment was delivered by Honorable Justice S.K. Panigrahi.
FACTS
The Appellant/accused filed the present petition challenging the order dated 11.12.2019 wherein, his prayer for bail was rejected by the Court. The allegations in the F.I.R against Appellant/ accused as filed by the victim is as follows-
- Complaint by a victim, aged 19, belonging to ST community was lodged and implicates 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 (PoA) Act, 2015.
- According to her complaint, the appellant and the victim are the resident of the same village and known to each other. The Appellant had given her a mobile phone for facilitating regular communication and he had taken her for an outing on a few occasions.
- Appellant 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.
THE CONTENTIONS OF ACCUSED/APPELLANT
The counsel of the accused argued that he has never been involved in any manner in any criminal case. He further, contended that, assuming for the sake of argument but not conceding, the victim is a major and a consenting party in the sexual relationship, if at all her version of a love relationship was existing for the last four years, the offense under Section 376 of I.P.C. cannot be made out.
He also argued that, 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 out a false allegation and he has never done so.
ARGUMENTS RAISED BY THE STATE
The standing counsel for the state opposed the bail application. According to State counsel- 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 and they both knew each other.
ANALYSIS
From the medical report, no factum of recent sexual intercourse in the past emanates. Also, no injury was detected on the body of the victim and prima facie look at the medical reports suggests that there was no forcible sexual intercourse.
Similarly, the medical report suggests that the victim-girl was not pregnant at the time of her medical examination nor previous abortion is clear from the report. However, the Court refused to pre-judge as it was for the trial to establish these facts.
The issue in the present case was restricted to whether the accused can be granted bail? And if in the present case, False promise to marriage amounts to rape?
The victim in the present case was a major girl, with a sound mind and there seems to be no question of anyone being in a position to induce her into a physical relationship under an assurance of marriage.
CONFLICTING JUDGMENTS BY INDIAN COURT's
False promise to marriage does not amount to rape
Calcutta High Court in Jayanti Rani Panda vs. State of West Bengal and Ors, 1984 Cri.L.J. 1535(Calcutta HC) has held that the consent of full-grown girl to the act of sexual intercourse on a promise of marriage cannot be treated as an act induced by misconception of fact.
In Arak Sk. vs. State of West Bengal, (2001 Cri.L.J. 416 Calcutta HC) the Calcutta High Court held that though the act of the accused in abandoning the girl he promised to marry on her becoming pregnant is highly reprehensible, such conduct by itself did not become a ground for holding the accused guilty of a charge of rape under Section 376 of I.P.C.
False promise to marriage amounts to rape
In Saleha Khatoon vs. State of Bihar, 1989 Crl. L.J. 202 the Patna High Court have held false promise to marriage to be amounting to rape.
The Supreme Court of India, in Udayvs. State of Karnataka, (2003) 4 SCC 46 had the occasion to scan thorough the conflicting views of different High Courts. The Apex Court has examined the general concept of consent to arrive at the conclusion that consent given on false promise to marry would amount to consent under a misconception of fact and therefore, such consent would be vitiated.
Decision taken in recent judgement of Supreme Court
In the recent case of Anurag Soni vs. State of Chhattisgarh, 2019 (6) SCALE 211, the Apex Court, 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 OF THE COURT
The Court observed that legislative intention is that rape laws should not be used to regulate intimate relationships, especially in cases where women have agency and are entering a relationship by choice.
The court observed that the present case was riddled with some visible contradiction of facts. It set aside the earlier order dated 11.12.2019 and granted bail to the accused.
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