On 21st May 2020, Orissa High Court heard the case for appellant G Achyut Kumar. The appellant filed a criminal appeal against the State of Orissa against the order dated 11.12.2019. The said order rejected the appellant’s prayer for bail in G.R. Case No. 1013 of 2019. The case has charged the appellant under the following sections:
– Section 493 of IPC (Indian Penal Code)- Cohabitation caused by a man inducing a belief of lawful marriage.
– Section 313 of IPC– Causing miscarriage without woman’s consent
– Section 376 of IPC– Punishment for Rape
– Section 3 (2)(v) of SC and ST (PoA) Act, 2015- committing any offence under the IPC for being a member of SC or ST community.
Details of the Registered FIR
Patangi Police Station at Koraput registered the FIR of the case on 27th November 2019. The victim of the case is a 19-year-old girl from the ST Community. The girl submitted in a statement that she and the appellant are from the same village. The appellant had given her a phone for regular communications. He promised to marry the girl and preyed on her by establishing a sexual relationship with her. The girl accused the appellant of terminating her pregnancy twice during their relationship. He did this by giving her medicine.
Arguments by the Parties
The counsel for the appellant argued that the appellant’s criminal history is clear. Moreover, the victim and the appellant had a relationship for four years. This means that the offence under section 376 of IPC is not applicable in this case. The learned counsel argued that the relationship between the victim and the appellant is only a product of the victim’s imagination. He rejected the accusation of terminating the pregnancy of the victim.
Finally, he argued that most of the investigation for the case has completed and the Court has examined the material witnesses. This means releasing the appellant will not deter the investigation.
The Counsel for the State opposed the bail application on the grounds that the recorded statement revealed that both parties had an intimate relationship. He argued that the appellant coerced her to end her pregnancy. Thus the offence under section 376 of IPC is applicable.
Divergent Views of High Courts
In the matter of Arak Sk. vs. State of West Bengal (2001 Cri. L.J.416) Calcutta High Court submitted that
“abandoning the girl, he promised to marry on her becoming pregnant is reprehensible, such conduct by itself did not become a ground for holding the accused guilty of a charge of rape under section 376 of IPC.”
Conversely, the Patna HC in the case of Saleha Khatoon vs. the State of Bihar (1989 Crl. L.J. 202) upheld that consent on a false promise to marry is corrupted by misconception and thus, amounts to Rape.
The Supreme Court
The Apex Court scanned through many High Court cases in the matter of Uday vs. the State of Karnataka (4 SCC 46 (2003). The Court analysed the concept of consent in this context. It highlighted that:
“false promise to marry would amount to consent under a misconception of fact and such consent would be vitiated.”
In the matter of Yedla Srinibas vs State of Andhra Pradesh (11 SCC 615 2006), the Supreme Court was of the view that voluntary consent depends on facts of each case and factors. For example, the Court must take into account the age of the girl, the girl’s education and the social status of both.
Apex Court in Vinod Kumar vs. State of Kerala (5 SCC 678 2014) observed that there is a rise in cases where both parties develop a consensual physical relationship. But when the relationship goes downhill, the “women use the law as a lethal weapon for vengeance and personal vendetta…This misuse defeats the very purpose of the provision of law.”
In a recent case Anurag Soni vs. State of Chattisgarh (6 SCALE 211 2019), the Supreme Court tried to differentiate between an unfulfilled promise and a promise that is false from the very beginning. The Court held that if the accused man can prove that he intended to marry the woman but changed his mind later, then it’s not rape.
Observation of the Court
The Court made various observations while discussing the bail application. The Hon’ble Justice S.K. Panigrahi perused the statement on record. It revealed that the victim and the appellant had a love affair for four years. The Court also observed the “belief that the appellant had given a false promise to the victim to marry.” There should be a proper trial to establish the allegations of the appellant having a sexual relationship with the girl. The Court pointed out that while the medical reports do not show signs of recent sexual intercourse, it is not completely ruled out looking at the “genital status of the victim.”
While discussing these observations, the Court agreed that “our society is still conservative when it comes to the matter of sex and sexuality.” Yet, the Court held that a consensual relationship will not count as an offence under section 376 of the IPC.
The Court upholds that it is yet another case of an intriguing nature. This calls for an opportunity to discuss the parameters of the issue. It looks at the definition of rape to understand the concept of false promise to marry for sexual intercourse.
Section 375 of the IPC defines “rape” as certain sexual acts when committed on a victim under any of the seven descriptions which are: a) against the victim’s will, b) without consent, c) with consent, but obtained under fear of death or hurt, d) when the given consent is with the wrong belief that the man is her husband, e) when the given consent is under intoxication, f) consent from a girl under the age of 18 years, and g) the victim is not in any shape/position to communicate the consent.
The above-mentioned descriptions do not include the criteria of “false-promise-of-marriage induced sexual intercourse.”
In light of the following discussions, the Orissa HC held that the rape law fails to capture the plight of women. They who are often “lured into sex by men on false promises of marriage and then dumped as soon as they get pregnant.” Most of these complaints come from poor segments of society.
The Court submitted that consent obtained on a false promise is not a valid consent and “the automatic expansion of provisions of section 90 of IPC (consent given under fear or misconception) to determine the effect of a consent under section 375 of IPC deserves a serious relook.”
Court’s Order
In the current bail application, the Court held that there is a contradiction of facts. Thus, the law at this stage has the potential to the rescue of the appellant. A thorough trial is necessary for understanding many of the aspects of the case.
Finally, the Court upheld that until the trial the appellant deserves “the benefit of bail.” The Court granted bail to the appellant. The Court directed him to cooperate with the investigation. Also, he must not threaten the victim and misuse his freedom.
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