Sex before breach of marriage promise cannot be deemed rape: Orissa HC

Cuttack: In a landmark verdict, the Orissa High Court has held that in a relationship, initially started and developed genuinely with friendship but souring after the male partner decided not to marry his partner, sexual intimacy should not always be branded as a product of mistrust and mischief, thereby accusing him of rape.

This judgment was delivered by a bench of Justice R K Pattanaik on July 3, while hearing a petition challenging the legality of criminal proceedings initiated against a man in a case where a relationship had gone sour after seven years. The court observed that in case that a relationship goes sour and a person decides not to marry his partner, the sexual intimacy that preceded should not always be considered as rape.

Terming the act as dissimilar to having sex under the false promise of marriage, Justice Pattanaik said: "There is a subtle difference between breach of promise, which is made in good faith but subsequently could not be fulfilled, and a false promise to marriage. In the former case, for any such sexual intimacy, an offence under Section 376 IPC (sexual assault) is not made out, whereas, in the latter, it is, since the same is based on the premise that the promise to marriage was false or fake from the very beginning, which is given on the understanding by the accused that it would be broken finally."

The court, considering the complaint and other materials, said that it is of the view that the entire story revealed the existence of friendship and thereafter, a relationship which was developed under different circumstances.

During the initial period, the petitioner was inclined to marry the other party, to which she agreed later and even a settlement was reached on February 4, 2021. Therefore, it may be said that a promise by the petitioner was broken though he had the initial interest and inclination to marry the woman, who, for certain reasons, was not ready for it at that point in time, the judge observed.

It is alleged that under threat or compulsion, the other party agreed for the marriage after she was blackmailed by the petitioner. Interestingly, the woman agreed later and even entered into a written agreement with the petitioner in 2021. It indicates that the parties had a difficult time in dealing with each other and managing their relationship which finally worsened leading to separation.

“From the conduct of both the parties as made to suggest considering the complaint and pleadings, it would not be just and proper to allege sexual mischief against the petitioner, who for reasons unknown declined to marry opposite party No.2,” the court said in its judgment.

Justice Pattanaik noticed that the parties are educated and well placed and were quite aware of the consequences and still engaged themselves in a relationship which remotely appear to be one-sided and having understood the kind of relationship it was developed and had become later on. Keeping in view the settled position of law, the High Court reached the conclusion that it would not be justified to allege rape against the petitioner. However, so far as other allegations are concerned, it should be left open for inquiry and investigation, it said.

The court has quashed the charge under Section 376 (sexual assault) of IPC pending against the petitioner in this case.