Orissa High Court Ruling: Sex On False Promise Of Marriage Is Not Rape

Orissa High Court observed that sex on false promise of marriage is not rape. The court held that, the Law is well settled that consent obtained on a false promise to marry is not valid. The Law have specifically provided the circumstance, consent amount to no Consent in term of Section 375 of IPC, 1860 Rape is define under Section 375 of the Indian Penal Code.

According to this section, a man is said to commit rape if he has sexual intercourse with a Women under certain circumstances, including 'against her will'' or 'without her consent obtained by fraud or misconception of fact is not considered valid consent under Section 90 of the IPC.

There Are Six Description Of Circumstances Under Which A Man Is Said To Commit Rape:

1. Against her will.
2. Without her consent.
3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
4. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
5. With her consent, when at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
6. With or without her consent, when she is under 18 years of age.

However, it has also been mentioned under this section that sexual intercourse based on a promise to marry will be considered as rape only if from the initial stage the accused had no intention to fulfil that promise. Therefore, an accused can be convicted only if the court reaches.

The Conclusion that the accused had mala fide intention and also had clandestine motive.

Illustration:
My client Sheela is 24year old women, who in love with a 28year old man, Neeraj. He is never disclosed to her was married. Sheela was under the impression that Neeraj was an unmarried man. One day Neeraj conveyed to Sheela that he loves her. When Sheela asked Neeraj if he would marry her, he simply smiled, therefore Sheela that he loves her. When Sheela asked Neeraj if he would marry her one day and therefore gave her consent for the relationship. Later when Sheela asked Neeraj to marry her, he refused and told that he was married, and this was just an extra marital affair.

Here, Sheela can file a rape case against Neeraj because as Sheela was under the impression that Neeraj would marry her and therefore consented for the relationship. Neeraj never stated about his marital status nor his intentions of not getting married. Sheela can file a case undersection 375 of IPC, and Section 90 of IPC the consent was obtained under the misconception. The consent was obtained by fraud.

In the case in Yedla Srinivasa Rao vs State of A.P (2006), applied section 90 of IPC, In this case, the accused used to come daily to the prosecutrix sisters house and ask her for sexual fa from her. Her refused her to participate in such activities with him, but still, he used to persist and persuade her, she Resist for about 3 months. One day he again came to her sister's house, closed the doors of the room and had sexual intercourse forcibly, without He Consent as well as against her will. When she asked why he spoiled her life, he answered that he would marry her.

Hence based on this assurance that he would marry her. one day she got pregnant and informed the accused about her pregnancy. He gave her some tablets to abort the child, but the tablets did not work. In the third month of pregnancy when she again asked him to marry her, he answered that her parents were not agreeing for the same, she deposed that she would not have promised to her, then she would not give consent for the sexual intercourse.

The court after taking into consideration all the aforesaid facts, held that the consent was given under the misconception of the fact that the accused will marry her. Therefore, this consent will be considered as no consent and hence, the accused would be held guilty under section 375 0f IPC, and the punishment was granted to him under section 376 of IPC.

Another case was Pradeep Kumar vs State of Bihar (2007), it was held by Supreme Court that the term Misconception of fact defined under the section 90 0f IPC is broad enough to include all cases pertaining to misrepresentation of facts, deceit, fraud and reference to which consent is given section 3 of the Indian Evidence Act, 1872 also provide for intention to be treated as fact.

Thus, if the consent of the victim is procured by misrepresentation of facts or fraud then it will be treated as against her will. It is an offence under the provisions of criminal law to obtain consent from a person by fraud and misrepresentation of fact. Therefore, if the accused had sexual intercourse with the victim on false promise of marriage, would amount to rape within the meaning of section 375 of IPC.

Another case was Anurag Soni vs State of Chhattisgarh (2019). In this case, a girl studying Pharmacy knowing that the appellant's marriage has been fixed with some other lady whose name was Priyanka Soni, give him the consent to make physical relations with her only when he promised her that he would marry her. Therefore, the court held that from the facts it can be concluded that from the beginning the accused had no intention to marry the prosecutrix and he made a false promise to her due to which she gave consent for making physical relations with her.

So, as her consent was based on to which she gave consent for making physical relations with her. So, as her consent was based on the misconception of the fact under section 90, her consent will be considered as no consent. Hence, the accused was held guilty for the offence of rape under section 375 of IPC and the punishment was given to him under section 375 of IPC.

Conclusion
In the Indian Marriage is considered a sacred institution in our tradition bound society and the girls are conditioned into an unconditional surrender of self to their husbands. Even Indian law don't acknowledge non-consensual sex within the marriage as rape. Rape has an ending, effects on the sexual violence. The offence of rape Cause the greater distress and humiliation to the victim and also to its family members, and also society.

Also Read:

• Consent Given For Sexual Intercourse On The False Promise Of Marriage Amounts To Rape?\
• Sex On False Promise Of Marriage