Fake Promise of Marriage & Rape: Orissa High Court Judgment Analysis

Introduction:

Indian legal system is a mixed legal system that has civil, common law and customary laws within it. It follows both codified and judge-made laws. Judges play an important part in law-making. Especially when it comes to the Supreme Court and High Court of the nation. Because their decision is binding on the lower courts.

Many amendments to the law were made after considering the judgment of the apex court. Similar was held in 2013 that amends section 375 of the Indian Penal Code which defines rape. This amendment defines rape more clearly and also conditions in which consensual sex amounts to rape. The crimes against women in India are increasing day by day and rape is 3^rd among them.

But a recent judgment of Orissa High Court again puts a controversy regarding the definition of rape under Indian law. The court held that sex on fake promise of marriage does not amount to rape, as 375 do not define it as rape. But various judgments including that of the apex court held that sex on the fake promise of marriage is considered as rape.

This article tries to make the concept of rape and fake promise of marriage in relation to rape more clear, with an analysis of the recent judgment of High Court.

Judgment of Orissa High Court

The facts of the case were, police arrested a man on a complaint by the 19-year-old girl under sec. 376 of IPC. The girl alleged that the boy establish a sexual relationship with her on the promise to marry. She also said that in the last four years of relationship she got pregnant twice and was forcefully given abortion pills for abortion. The session’s judge held it to be rape under section 375 IPC. The accused challenged the judgment in the HC.

Justice S.K. Panigrahi on 21^st May, 2020 held that sex on the fake promise of marriage does not mean rape under section 375.

The reasoning behind this is rape laws should not regulate intimate relationships especially when women have agency to choose. He further says that the false promise of marriage amounts to rape appears to be erroneous as the ingredient of 375 does not cover this clause.

 Hence granted bail to the accused.

Rape as per IPC

Section 375 of IPC reads as:

A man is said to commit “rape” if he:––

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions.

• Firstly. –– Against her will.
• Secondly. –– Without her consent.
• Thirdly. –– With her consent, when obtaining of consent is through putting her or any person of her interest, in fear of death or of hurt.
• Fourthly. –– 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 as lawfully married to.
• Fifthly. –– 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.
• Sixthly. –– With or without her consent, when she is under eighteen years of age.
• Seventhly. –– When she is unable to communicate consent.

When consensual sex equals to rape: Provision for when consensual sex equals rape is under third to sixth situation of Section 375.

Case Laws

When Sexual relation by the fake promise of marriage is not rape:

The Calcutta HC in Jayanti Rani Panda vs. State of West Bengal and Ors.[1] held that consent of a full-grown girl to sexual intercourse on a promise of marriage cannot be treated as an induced by misconception.

Also in Arak SK. vs. State of West Bengal[2], it was said that the act of accused in abandoning the girl he promised to marry on her becoming pregnant is highly reprehensible, such conduct however did not become a ground for holding accused guilty of charges of rape.

When Sexual relation on the fake promise of marriage amounts to rape:

In a recent judgment by Apex Court in Anuraj Soni vs. State of Chhattisgarh[3] , the court made a distinction between a promise which is unfulfilled and a promise which is false from the very beginning i.e. if a man proves that he intended to marry the women but changed his mind later, then it’s not rape. It’s only considered rape if there is establishment of having dubious intentions from the beginning of the relationship.

In Promod Suryabham Pawar vs. The State of Maharashtra and Ors.[4], the court gave two propositions, the satisfaction of which establishes the gaining of consent via misconception. These were- firstly, the promise of marriage is a false promise; in bad faith and with no intention of adherence at the time of giving. The false promise itself must be of immediate relevance. Or bear a direct nexus to the woman’s decision to engage in sexual acts.

Controversies

• The Hindu at Delhi Trial Courts conducted a survey; and its findings establish that among the total number of rape cases pending in courts 40% are of consensual sex and another 25% of the fake promise of marriage. In a country where many of the cases were of rape by the fake promise of marriage, and also the cases of rape increasing day by day; does the view of Orissa HC seems justified?
• Not only the underprivileged section of society but also in the metro cities plenty of rape cases filed. Furthermore, it was a bitter truth of the Indian legal system that still in the 21^st Century most of the rape cases were never filed. In such a condition does the liberal view of Orissa HC toward the accused, granting him bail, does this create faith of women in judiciary?
• Marriage in India is regarded as a sacred bond. For the majority of the population, marriage is a relationship which even not end with death. For such an important custom is someone makes a false promise on which he establish sexual relationship, is it the justice to grant him a bail? Just because the women trust her, this discretion is for the trustworthiness element of women’s character.
• The Court also has to understand the consequences of a crime that were faced by the victim, mostly the society sees a rape victim and a victim of the fake promise of marriage and sex with the same eye. Because still the patriarchal society sees women’s character in her virginity only. Hence both of them either rape without consent or such failed sexual relation of trust, all of them have the same consequences on the victim.
• The judiciary in India is the most trusted organ of government for the ordinary and common people; it is the hope of justice for everyone, and especially to the one who is underprivileged. And the very sad truth is that women are those half populations of India which is still underprivileged. The judiciary has to maintain their faith by their judgments and laws.

Conclusion

In Dhananjay Chatterjee vs. State of West Bengal,[5] it was said by the court that “the courts must respond to the society’s cry for justice in a manner which is proportionate to the crime which has been committed”.

It’s the high time when the court should remember this statement because rape is a crime against the whole society. And for the victim and her family, it has an enduring effect. It’s the most hated crime, not only against the women but against humanity. Rape destroys the victim’s soul due to which she already losses her faith in everyone. It should be the duty of the court to understand the plight of such women. The pain and misery they face every day in her life in day to day work, while facing the society. The court has to put due consideration on all aspects of the case.

If sexual relations on the fake promise of marriage is not rape, then the court has to decide what it is then. A proper separate section for such crime has to be given as 25 percent of a rape case is of such kind.

If even in the 21^st century, even after the Nirbhaya amendment the definition of rape is not covering every aspect of rape, then it’s not a good sign. In a time where India dreams to become a World power, is it possible without the faith of half of the population of India? Justice should also be seen to be done. The accused in rape cases should be given proper sentence as per his crime. Also, the definition of rape, if still not clear should be made more transparent so that such controversies like this case should not emerge again.

Either sex on the fake promise of marriage is rape or not should be decided properly, because the difference in opinion of the Supreme Court and various other High Courts will only defeat justice.

---

References:

[1] 1984 Cri LJ 1535 ( Calcutta HC)

[2] 2001 Cri. LJ 416 Calcutta HC

[3] 2019(6) SC ALE 211

[4] 2019(9) SCC 608

[5] 1994 SCR(1) 37