In the past few months much has been said on this topic. I hereby share my views in light of the recent events and support the same with a list of landmark case laws.
WHAT THE LAW SAYS
The world got divided into two parts after the Hon’ble Orissa High Court while hearing a bail application in the case of G. Achyut Kumar v. State of Odisha (CRLA NO. 940 of 2019, Date of order – 21/5/2020) said that, “Sex on the false promise of marriage is not rape”.
Some criticized the judgment, others welcomed it.
One thing to be noticed here is that it was merely a bail application, the grounds required for granting bail were all present and subsequently the bail was granted. There was no issue of whether sex on the false promise of marriage is rape or not, but the Hon’ble High Court by itself said the aforementioned.
The Hon’ble court reiterated the 7 descriptions mentioned under Section 375 of IPC. The Hon’ble court held that out of all the descriptions mentioned in Section 375, sex on the false promise of marriage was nowhere mentioned, the Hon’ble court took the precedence of Queen v Clarence (WH {1888} 22 QBD 23).
In Section 90 of IPC, Consent is defined in a rather negative way and goes on like this, “If the consent is given by a person under the misconception of a fact, then it is not consent”
RULINGS BY THE SUPREME COURT OF INDIA
In the case of Yedla Srinivasa Rao v. State of A.P (2006 {11} SCC 615),
Hon’ble Apex Court upheld the decision of rigorous imprisonment given by the High Court and based its decision on Section 90 of IPC, and stated that, consent under the misconception of a fact, is not a consent at all, if the boy in this case hadn’t promised to marry the girl then she would not have engaged in the sexual activity with him.
The Hon’ble Apex Court also held that the onus to prove whether the consent involved is legal or not lies on the boy/man.
In the case of Pradeep Kumar v. State of Bihar and Anr (AIR 2007 SC 3059).,
Hon’ble Apex Court herein held that there is no hard and fast rule to determine cases like these, it depends on case to case, main issue will be to check whether the promise to marry was false since the beginning or not.
In the case of Deepak Gulati v. State of Haryana (2013 7 SCC 675)
Herein the Hon’ble Apex court held that the boy in this case has clear intentions of marrying the girl that is why he was in his way to Ambala with the girl where the Police arrested him due to a kidnapping case filed by the girl’s father.
Hon’ble Apex Court herein held that, inability to marry wherein the intentions are bonafide, does not amount to rape.
In the case of State of U.P v. Naushad (AIR 2014 SC 384)
The Hon’ble Apex Court upheld the judgment of the Learned Trial Court and quashed the High Court’s Judgment.
Herein the trial court gave life imprisonment but the High Court had overturned this decision.
Herein, the promise to marry was false from the beginning and this cannot be termed as “consent”.
In the case of Anurag Soni v. State of Chhattisgarh (Criminal Appeal No. 629/2019, Date Of Order 9 April 2019)
Herein, the Hon’ble Hight Court confirmed the decision of the Learned Sessions Court which gave 10 years imprisonment, subsequently the Hon’ble Supreme Court although confirmed the decision but reduced the sentence to 7 years. It was held that the promise was false from the beginning, the boy herein married a different girl while the 1st girl waited for him to marry her and preparations were going on between the two families.
CONCLUSION AND MY VIEWS
I don’t concur with the Hon’ble Odisha High Court’s ruling on the bail application wherein the court by itself held that sex on the false promise of marriage is not rape, this order sent a wrong message to people, especially the youth of this country.
Hon’ble Apex court rightly said that according to Section 90 of IPC, if the consent is given under the misconception of a fact then it is not consent per se.
There cannot be a hard and fast rule and it depends on case to case on the basis of the facts.
But one thing is for sure that, “Sex on the false promise of marriage will definitely amount to rape” as the consent herein was based on a false promise/misconception of fact, and the same is not a consent as per Section 90 of IPC, consent being one of the main ingredients of Rape under Section 375 of the Indian Penal Code.
Although this ruling of the Hon’ble Odisha High Court cannot be termed as a broad proposition of law, since it was merely a bail application and the court merely gave its views on the same, had the case been decided by the court then it would have been said to be a broad proposition of law.
The Supreme Court held that the boy has clear intentions of marrying the girl; that is why he was on his way to Ambala with the girl where the police arrested him due to a kidnapping case filed by the girl’s father. The top court herein held that inability to marry, wherein the intentions are bona fide, does not amount to rape.