Sex in case of breach of marital promise is not rape: Orissa High Court

In a landmark judgement, the Orissa High Court observed that in case a relationship goes sour and a person decides not to marry his/her partner, the sexual intimacy that preceded should not be considered as rape.

Terming the act as dissimilar to having sex under the false promise of marriage, Justice R K 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 observation came in a recent judgment while considering a petition challenging the legality of criminal proceedings initiated under Section 420 (cheating), 376 (sexual assault) and 354 (criminal force to outrage modesty) in a case where a relationship had gone sour after seven years.

"What the court is concerned with is that a sour relationship, if initially started and developed genuinely with friendship, should not always be branded as a product of mistrust and mischief, thereby accusing the male partner of rape," Justice Pattanaik observed.

He stated, from the FIR and material evidence, it is observed that there was no genuine promise from the accused. It could not be established that the promise was fake and meant to induce the partner to obtain his/her consent to maintain sexual relationship. So, it would not be an act in bad faith and an offence under Section 376 IPC could not be made out, Justice Pattanaik ruled in the July 3 order.

According to the case records, the woman had entered into a relationship with the petitioner which was built upon a friendship at a time when she was not yet divorced from her husband. A promise by the petitioner was broken, though he had initial interest and inclination to marry the woman, who, for certain reasons was not ready for it at that point of time.

The court further observed that the parties were aware of the consequences. "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, the court reaches at a conclusion that it would not be justified to allege rape against the petitioner," Justice Pattanaik stated.