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

Cuttack: In a landmark decision, the Orissa High Court ruled that if a relationship fails and a person decides not to marry the partner, the sex that followed should not be considered rape.

The High Court made the observation while hearing a petition challenging the legality of criminal proceedings initiated under Sections 420, 376, and 354 in a case where a seven-year relationship had ended.

"There is a subtle difference between a breach of promise, which is made in good faith but subsequently could not be fulfilled, and a false promise to marriage," Justice R K Pattanaik said, comparing the act to having sex under the false promise of marriage. In the former case, an offence under Section 376 IPC (sexual assault) is not made out for any such sexual intimacy, whereas it is in the latter, because it is based on the premise that the promise to marry was false or fake from the start, and was given with the understanding that it would be broken eventually."

The HC observed that a sour relationship, if started and developed genuinely with friendship, should not always be branded as a product of mistrust and mischief, accusing the male partner of rape.

According to the FIR and material evidence, there was no genuine promise from the accused. It could not be established that the promise was false and intended to induce the partner to consent to the continuation of the sexual relationship, it said.

As a result, it would not be an act in bad faith, and an offence under Section 376 IPC could not be established, Justice Pattanaik ruled recently.

According to the case records, the woman began a relationship with the petitioner based on a friendship when she was still married to her husband. 

The petitioner broke a promise, despite his initial interest and inclination to marry the woman, who, for various reasons, was not ready for it at the time.

Noting that the parties were aware of the consequences, the court stated that the parties are educated and well placed and were quite aware of the consequences and still engaged themselves in a relationship that appears to be one-sided and having understood the kind of relationship it was developed and had become later on, the court concludes that alleging rape against the petitioner would not be justified.