The Odisha High Court in its recent judgment has ruled that consensual sex under the pretext of marriage does not amount to rape, adding that rape laws should not be used to regulate intimate relationships when a woman enters one by her own choice.
Notably, the court made the observations in December of 2022 while granting bail to a man accused of raping a woman on the pretext of marriage.
A bench of judges wgile pronouncing the judgment noted, “A consensual relationship without even any assurance, obviously will not attract the offense under section 376 (punishment for rape) of Indian Penal Code. The law holding that false promise to marriage amounts to rape appears to be erroneous,”.
Clarifying further, the bench said that rape under section 375 of IPC can be said to have been committed if it’s against the woman’s will, without her consent, with her consent but under fear of death or hurt, consent in the wrong belief that the man is her husband, consent when she is of unsound mind or intoxicated and unable to understand the nature of consequences of what she is consenting to, consent from a girl under the age of 18 years and when she is not in a position to communicate the consent.
The incident came to the fore when on January 12, 2020, the man allegedly took the woman from Puri to Bhubaneswar on the pretext of marriage. In Bhubaneswar, the duo allegedly got physical several times and the man clicked intimate photos of her before abandoning her.
In the aftermath of the incident, the woman filed a complaint at Nimapara police station following which the accused was arrested on charges of rape. However, it was found that the man and woman knew each other and the medical reports suggested there was no forcible sexual intercourse.
“It is undeniable that our society is still largely conservative when it comes to matters of sex and sexuality. Virginity is a prized element. The victim being a major girl with a sound mind, there seems to be no question of anyone being in a position to induce her into a physical relationship under the assurance of marriage. There could be a possibility of experimentation with erotic asphyxiation which is very much part of their sexual autonomy,” Hindustan Times quoted the judge as saying.
The judge also pointed out that that the woman had failed to share the exact date of the incident in the FIR, hence the situation cannot be pre-judged before a proper trial. However, the court stated that though sex on the pretext of marriage cannot be held as rape, this law fails to capture the plight of those girls belonging to the socially disadvantaged segments of society who are often lured into sex by men on the pretext of marriage.
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