"There is a requirement for the change in law what defines sexual Intercourse with the female who is the victim of the crime on the 'pretext of a false oath of marriage' as in the current situation the law doesn't clearly provide for the conviction of the defendant, "the Orissa High Court recently stated.
On Wednesday (March 31, 2021), it ruled that the law seems to be wrong which holds a person guilty of rape after having sexual intercourse on a false oath to marry.
However, the court held that in order to resolve the issue of bail, the victims plight and the possibility of the defendants damage to victims image must be analyzed.
The court also considered it to be necessary to ammend the legislation which defines sexual intercourse with the prosecutors on the ground of the false oaths to marry.
This opinion was made by the Judge S.K Panigrahi who rejected a bail application filed by the person accused of raping a women to whon the accused had made a false oath to marry beforehaving the sexual intercourse with her.
As claimed by the women, the applicant had also caused her abortion by giving her medicine in the event of getting pregnant twice.
The woman also claimed that her family contacted the applicants family to obtain consent for the marriage. However, the accused refused the proposal. When the proposal was rejected, the woman's family arranged her marriage somewhere else.
The woman had also claimed that on 26th April, 2020 the plaintiff created a fake Facebook account under her name by using a caption which indicates that she is of bad character, which later led to the breakdown of her marriage.
There after, an FIR was filed against him under section 376(1) (punishment for rape), 313( causing miscarriage without womans consent ), 294( obsence acts and songs) and 506( punishment for criminal Intimidation ), of the Indian Penal Code and section 66(E) ( punishment for violation of privacy) , and 67( A) ( punishment for publishing or transmitting of material containing sexually explicit act, etc in electronic form) of the Information Technology (Amendment) Act, 2008.
However, the legislation on the sextual intercourse with the female on account of the false oath to marry is not clear enough.
While anlayzing the relationship between section 90 where the consent is given out of fear and misunderstanding and section 375 IPC, the court stated that the judiciary is concerned with such concepts, however " has not reached to a certain point and is still shrouded in chaos"
The Orissa High Court also observed that "there is a necessary for the change in the legislation what defines 'Sexual intercourse' , with the female who is the victim of the crime on a pretext of a false oath of marriage. As in the current situation the law doesnt clearly provide for the conviction of the defendant.
In observing so, the Orissa High Court relied on the Judgment of the Apex Court in Arunag Soni vs Chattisgrah State AIR 2019 SC 1857 , in which the Supreme Court ruled that the defendant had agreed to marry and had promissed from the beginning but didn't intent to fulfill the promise, such a promise is not regarded as a valid consent for the marraige.
The Court further observed that "The rape laws should not be used to control the interpersonal rationships especially in the cases where the women are entering into the relationship by their own choice. However, it should be noted that many complaints came from disadvantaged, impoverished and rural areas. Women in such sectors are often attracted by false marraige promises, and once they do, they are immediately rejected, Rape laws often fail to consider their plight".
In addition, the Court observed that since section 375 stipulates the specific circumstances under which consent constitutes an " Objection" , the said provision doesn't mention that this provision which uses marraige as an excuse to consent to sexual intercourse is one of the circumstances. Therefore, the automatic extention of section 90 of the Indian Penal Code to determine the effect of the consent under section 375 IPC is worthy of a substantial change.
The Court observed that, "Although the law that erroneously promise to get married seems to be synonymous with rape, bail must take into account the victims plight and the possibility that the defendant may harm the dignity of the victim and her family. "
The Court also observed that FIRs first reading reveals specific charges against the defendant and plaintiff had denied his bail. It is found that there is a posiiblity of coersion of victims family, comitting similar crimes again and evade from justice.
There are many other allegations in the indictment. These allegations are very detailed and do not need to be repeated, because the above excerpts are sufficient to show that these allegations are specific in nature rather then general. They provided sufficient evidence without rebuttal.
