Rape (Section 375)

The offence of rape is a serious offence done against the whole society. Section 375 of India Penal code define rape.

Such Act must be done under any of the following seven circumstances-
 

Circumstances Of Sexual Intercourse:

1. Against the will of woman: The offence of rape is constituted when the sexual intercourse is done against the will of the woman. "Will" means that the woman should be healthy and conscious and she would have expressed her will prior to the intercourse.
    
2. Without the consent of woman: Consent of the woman for the sexual intercourse must have been obtained prior to the act, it would be no defence that the woman consented after the act. Consent means voluntarily participating in the intercourse and that consent should be free consent, i.e. should not have been obtained by deception, fraud, mistake, or false misrepresentation.
    
3. Consent obtained by putting in fear of Death or Hurt: Such consent is not considered as the free consent when it is obtained by putting her or any person in whom she is interested in fear of death or of hurt.
    
4. Consent obtained by Fraud: When the consent is obtained by any person who knows that he is not her husband and that her consent is given because she believes that he is the person with whom she is lawfully married. In this situation, the sexual intercourse would amount to rape.
    
5. Consent by women of unsound mind or Intoxicated or any woman unable to understand the nature and consequence of her act due to taking of unwholesome substance: This clause was added in 1983 through the amendment. According to this clause, if the consent is given by the nature and consequence of her act due to taking of unwholesome substance, then that consent would not be the free consent and such intercourse would amount to rape.
    
6. By the Consent of woman under the age of Eighteen years: the age for giving consent for the purpose of this section has been fixed as 18 years. If the sexual intercourse is done with any woman below the age of 18 years, either with or without consent, it shall amount to rape.
    
7. When she is unable to communicate consent - If the woman is not in a position to communicate her consent. It shall amount rape.

Why did Orissa High Court say this? Sex on false promise of marriage is not rape

Case: G. Achyat Kumar v. State of Odisha ( 2020)
It was only a bail application. there was have all grounds for bail therefore Orissa High Court granted him bail. And the Orissa High Court held that sex on false promise is not rape.

The Orissa High Court is impress by Queen v. Clarence case.
If a boy meets a girl on the street and asks her to have sex by giving him fake money and after sex the girl comes to know that the money was fake then it would be fraud and not rape.

Become here the consent of the girl was there, so it will no be rape.

Note: the Odisha High Court has given only suggestions. It is not a law.

What is the law on this?
As per section 90 of the Indian Penal code:
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; or

Consent of insane person.-If the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or

Consent of child-Unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

We will trying to understand with the help of Supreme Court landmark judgement.

Case Yedla Srinivasa Rao v. State of Andhra Pradesh (2006)
In this case Supreme Court held that Such a promise was a fraud from the beginning. If the boy had not made such a promise the girl would never have been prepared to do all this so taking a promise like this is a fraud. The Supreme Court has Refer to the section- 90 of the Indian Penal Code (IPC) Consent known to be given under fear or misconception. Supreme Court said one more thing it will be the responsibility of the boy to prove whether the girl's consent is legal or not.

Case Deepak Gulati v. State of Haryana
In this case sex has taken place intercourse has taken place was a girl was in a live in relationship with the boy for 4 days but the boy was Ready to marry her when the girl was missing from that house for 3-4 days her family member filed a case of kidnapping. When the boy and girl were going to get marriage after 4-5 day the police caught the boy on the way the put in jail.

In this case the Supreme Court Hello said that the intention of the boy is clear. he was taking the girl to Ambala to marry her. But he was caught by the police on the way for this reason he could not marry the girl. That's why he does not guilty.

Conclusion:
If a person makes a relation with a girl by making false promise of marriage, then it is rape. But if he intended to get married but could not get married for some reason then it would not be rape.