Orissa High Court ruling- Sex on false promise of Marriage is not Rape

Mariam Nizami
Intern at UbAdvocate
Email- mariamnizami8984@gmail.com
Contact no.- 9818850397

Ms. Sheela is my client, 24-year-old women, who was in love with a 28-year-old
man, Neeraj. Neeraj never disclosed to Sheela that he was married and Sheela
was under the impression that Neeraj was an unmarried man. One day Neeraj
conveyed to Sheela that he loves her. When Sheela asked Neeraj that would he
marry her he simply smiled; therefore, Sheela was under the impression that he
will marry her one day and therefore gave her consent for the relationship. Later
when Sheela asked Neeraj to marry her, he refused and told that he was married
and this was just an extra marital affair.

Orissa High Court observed that sex on false promise of marriage is not rape.
The court held that,” The law is well settled that consent obtained on a false
promise to marry is not valid. 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 law holding
that false promise to marriage amounts to rape appears to be erroneous.”
According to Section 375 of the Indian Penal Code, a man is said to commit
rape if he penetrates, inserts manipulate and applies his mouth to the vagina,
anus, urethra of a woman or make her do so with him or any other person under
the circumstances falling under any of the following descriptions. Firstly,
against her will. Secondly, without her consent. Thirdly, when her consent is
obtained by putting her in fear of death or hurt of the person in which she is
interested. Fourthly, when she gives consent believing that the man is her lawful
husband. Fifthly, when her consent was obtained at that time, she was not able
to understand the nature and consequences of the act. Sixthly, when consent was
obtained, she was under eighteen years of age. Last but not least when she was
not able to communicate the consent.

The sexual intercourse based on false promise to marry will fall under Section 90
of the Indian Penal Code only when the consent of the prosecutrix has been
obtained by putting her in fear of injury or under a misconception of fact or at the
time when she was not able to understand the nature and consequences of her
actions. Here no such fear of injury or misconception of fact is present.

Here Sheela can file a rape case against Neeraj because as Sheela was under the
impression that Neeraj would marry her and therefore consented for the
relationship. Neeraj never stated about his marital status nor his intentions of
not getting married. Sheela can file a case under Section 375 of IPC. As under
Section 90 of IPC the consent was obtained under the misconception. The
consent was obtained by fraud.
In the case of Pradeep Kumar v. State of Bihar (2007), it was held by the
Supreme Court that the term ‘misconception of fact’ defined under Section 90
of IPC is broad enough to include all cases pertaining to misrepresentation of
facts, deceit, fraud etc reference to which consent is given. Section 3 of the
Indian Evidence Act, 1872 also provides for intention to be treated as fact.

Thus, if the consent of the victim is procured by misrepresentation of facts or

fraud then it will be treated as against her will. It will be an offence under the
provisions of criminal law to obtain consent from a person by fraud and
misrepresentation of fact. Therefore, if the accused had sexual intercourse with
the victim on false promise of marriage, would amount to rape within the
meaning of Section 375 of IPC.

This opinion of mine is based on the YouTube video

https://www.youtube.com/watch?v=zGn9AnXBPck of Jeevan Prakash, AOR,
Supreme Court