Orissa High Court calls for reexamination of law which says sex on false promise to marry amounts to rape

The Orissa High Court recently observed that the law holding that sex on a false promise of marriage amounts to rape, appears to be erroneous and that the matter deserves a serious relook [Santosh Kumar Nayak v. State]..Justice SK Panigrahi raised concerns over the rationality of extending Section 90 (dealing with consent under fear or misconception) of the Indian Penal Code (IPC) to Section 375, IPC (dealing with rape) to determine the validity of consent for sex given on a false promise of marriage.." ... the automatic extension of provisions of Section 90 of IPC to determine the effect of a 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," the Court observed..The Court made the comment after noting that there is a distinction between promises of marriage that are false from the very beginning and the cases where such promises may be genuine to begin with, but later not fulfilled. .Further, the Court also observed that there may be instances where the existing rape law is misused, thereby defeating its purpose. ."In fact, such cases are on rise, where both the persons, out of their own sweet will and choice, develop consensual physical relationship but when the relationship gets sour for some reasons, the women use the law as a lethal weapon for vengeance and personal vendetta. They, out of anger or frustration, tend to convert such consensual acts as incidents of rape. This misuse defeats the very purpose of the provision of law," the Court said..The Court went on to express concern over whether the present law is sufficient to tackle varying concerns that arise in rape cases involving allegations of false promises to marry. Rape law often fails to capture the plight of victims from disadvantageous groups who are lured by false promises of marriage, the judge added. ."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. It is also equally disturbing, many of the complaints come from socially disadvantaged and poor segment of the society, rural areas, who are often lured into sex by men on false promises of marriage. The rape law often fails to capture their plight", stated the order. .The Court also highlighted that a false promise of marriage is not one of the express grounds laid down by the lawmakers under Section 375, IPC for determining whether consent for sexual intercourse was valid or not..“Since the framers of law have specifically provided the circumstances when 'consent' amounts to 'no consent in terms of Section 375 of IPC, hence consent for the sexual act on the pretext of marriage is not one of the circumstances mentioned under Section 375 of IPC," the Court said. .The Court made the observations while allowing a plea for bail in a case involving allegations of rape on a false promise to marry. .The petitioner was alleged to have eloped with the victim after he made a promise to marry her. He was accused of having maintained a physical relationship with the victim for several days before abandoning her. After a first information report (FIR) was registered in the matter, the petitioner was arrested, prompting him to move the Court for grant of bail..The petitioner's counsel highlighted that the victim, in the present case, was a major and that she had accompanied the petitioner willingly. It was further argued that the medical examination report indicated that there was no forceful sexual assault. .The State counsel argued that the petitioner had repeatedly committed sexual intercourse on the victim with an assurance of marriage. Further, it was submitted that the petitioner had clicked private photos of the victim before he abandoned her. .The Court noted that the medical report, prima facie, suggested that there was no forcible sexual intercourse. Further, the allegations that the petitioner had taken private photos of the victim appeared cloudy without a proper trial, the Judge observed. .The Court proceeded to opine that the benefit of bail ought to be given to the petitioner until that matter is decided by the trial court. “Truthfulness or falsity of the allegations, essentially pertains to the realm of evidence and the same cannot be pre-judged at this initial stage which warrants a trial to establish ... As the facts unfold, the victim being a major girl with sound mind, there seems to be no question of anyone being in a position to induce her into a physical relationship under an assurance of marriage," the Court observed..Bail was granted subject to the condition that the petitioner cooperates with the investigation and that he would not threaten the victim or misuse his liberty. .The Court also clarified that the observations made in the bail order regarding the facts of the case should not come in the way or prejudicially affect the fair trial of the case..Advocate Debasnan Das represented petitioner while Additional Government Advocate D Mund appeared for victim..[Read Order]