Probability Of Accused Tarnishing The Victim & Her Family’s Image Requires Consideration While Granting Bail On Rape Charges Upon False Pretext Of Marriage: Orissa High Court

The Single Judge Bench comprising Justice S.K. Panigrahi of Orissa High Court while denying the bail application filed u/s 439 CrPC of the petitioner accused for offences u/s 376(1)/313/294/506 of the Indian Penal Code and Sections 66(E) and 67(A) of the Information Technology (Amendment) Act, 2008 has observed that although the law holding that false promise to marriage amounts to rape appears to be erroneous,but , the plight of the victim and the probability of the accused tarnishing the dignity of the victim and her family need to be looked at while deliberating on the question of bail.

“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. However, it needs to be brought forward that many of the complaints come from socially disadvantaged and poor segments of the society and rural areas, women from these sections are often lured into sex by men on false promises of marriage and then dumped as soon as they get pregnant. The rape law often fails to capture their plight. The law is well settled that consent obtained on a false promise to marry is not a valid consent. Since the framers of the law have specifically provided the circumstances when ‘consent’ amounts to ‘no consent’ in terms of Section 375 of IPC, consent for the sexual act on the pretext of marriage is not one of the circumstances mentioned under Section 375 of IPC. Hence, the automatic extension of provisions of Section 90 of IPC to determine the effect of consent under Section 375 of IPC deserves a serious relook.”, the Bench remarked. 

Factual Matrix

In the present matter, the petitioner developed a romantic relationship with the complainant with a promise to marry. Due to physical relationship, the complainant became pregnant twice which was aborted by the petitioner by giving medicine to the complainant. On 22.01.2020, the complainant asked the petitioner to marry her, but he denied and thereafter the family members of the complainant contacted the petitioner's family members to get their consent for such marriage. However, they denied the marriage proposal as well. Having no alternative, the complainant’s family fixed her marriage elsewhere. However, on 26.04.2020, the petitioner posted personal photographs of the complainant along with him using fake Facebook IDs created in her name and used a caption stating that the character of the complainant is not good. Additionally, the petitioner has threatened to viral the obscene photographs on Facebook and also threatened to kidnap her and kill her. Thereafter, the complainant lodged an FIR and the accused was forwarded on 27.06.2020.

The Court placed reliance on Kaini Rajan v. State of Kerala ((2013) 9 SCC 113) & Yedla Srinivasa Rao v. State of AP ((2006) 11 SCC 615) to look into the essentials & parameters of the offence of rape to observe that There is a need for the amendment in the legislation defining what constitutes “sexual intercourse” with the prosecutrix on the “pretext of a false promise of marriage”. As in the present scenario, the law on this matter lacks clarity for the conviction of the accused.

Reference was also made to the Apex Court judgement in Anurag Soni v. State of Chattisgarh AIR 2019 SC 1857 in which it was observed that if an accused from the very beginning has given a promise of marriage without any intention to fulfill that promise and in lieu of such promise that the accused will marry her, she gave her consent for sexual intercourse with the accused, then such consent would not amount to valid consent. It shall come within the ambit of the misconception of fact under Section 90 of IPC. Thus, such consent shall not excuse the accused from the charges for the offence of rape under Section 375 of IPC.

“The investigation is still going on. From perusal of the FIR, it appears that the offences under the Indian Penal Code, are definitely made out though it cries for a thorough trial. A perusal of the FIR and other documents available in the present case prima facie shows that there are very specific allegations against the petitioner who is arrayed as accused. It is not, as if, the allegations are casual and sweeping against the accused generally. The possibility of coercion of the victim's family, repetition of similar type of offence and flee from justice cannot be ruled out in the present case.”, the Bench observed while refusing to grant bail. 

Case Title: Rinku Pradhan v. State of Odisha & Another| BLAPL No.6629 OF 2020