SHORT NOTE ON LEGAL OPINION
Topic- Orissa High Court Ruling: sex on false promise of marriage is not rape
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Background:
Orissa High Court in the case of G. Achyut Kumar V. State of Orissa granted bail as per the grounds and opined that sex on false promise of marriage is not rape.
As per the section 375 of Indian Penal Code (IPC), 1860 defines rape as “sexual intercourse with a women against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she is intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age”.
As per Orissa High Court “sex on false promise of marriage” is not stated in the section 375 read with section 7 of IPC.
The accused will be charged for the offence of “Fraud” but not for “Rape” relying upon the landmark case of Queen V. Clarence (1888)
Legal Issue:
Whether a rape case can be filed against a man for having sex with a women not disclosing his martial status and if he had not promised her to marry.
Judgements:
In the case of Yadla Srinivas Rao V. State of Andhra Pradesh (2006) Supreme Court upheld the Ruling of High court and sentenced rigorous punishment. Supreme Court Held that since beginning the promise was false and the onus to prove that women is voluntarily entered into the relationship is over the men. Supreme Court refer Section 90 of IPC stated that consent should be given without misconception of fact.
In the case of Pradeep Kumar V. State of Bihar (2007) Supreme Court stated that there is no hard and fast rule to determine promise of marriage is misconception of fact. It depend on case to case.
In the case of Deepak Gulati V State of Haryana (2013) Supreme court overrule the judgment of High Court and acquitted the accused stated that promise is not misconception of fact as inability to marriage is beyond the control.
In the case of state of U.P. V. Nashad (2014) Supreme Court overrule the High court judgement and sentenced life imprisonment to the accused, stated that the act of escaping from the village to avoid marriage with the women with who he engage in illicit sexual relationship on the promise to marry her implied that his promise to marry is false since beginning and the accused is liable for the offence of rape.
In the resent Supreme court Judgement bench of Justice L Nageswara Rao & MR Shah reaffirmed that when consent of the women for sexual intercourse is obtained based on promise to marry & it can be proved that the accused did not have any intention to marry the women. The accused will be guilty of rape under section 375 of IPC.
Conclusion:
Sexual intercourse is not amounts to rape when the consent is given voluntarily without misconception of facts. Sexual intercourse with a women with promise to marry her and merry another women will not erase the liability of committed crime.
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