Consensual sex under the pretext of marriage does not amount to rape, the Orissa high court has said, adding that rape laws should not be used to regulate intimate relationships when a woman enters one by her own choice.

A single bench of justice SK Panigrahi also said that the false promise of marriage appears to be erroneous as ingredients of rape under section 375 of Indian Penal Code (IPC).

The court made the observations last month while granting bail to a man accused of raping a woman on the pretext of marriage.

“A consensual relationship without even any assurance, obviously will not attract the offence 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,” the bench said.

It added 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 position to communicate the consent.

The above seven ingredients do not cover the false promise of marriage-induced sexual intercourse, the court said.

According to the police, on January 12, 2020, the man allegedly took the woman from her house in Nimapara in Puri district to Bhubaneswar on the pretext of marrying her. In Bhubaneswar, the duo allegedly got physical several times and the man reportedly clicked photos of her naked body before abandoning her.

The woman later filed a complaint at Nimapara police station of Puri district following which the accused was arrested on charges of rape.

Justice Panigrahi noted that police records showed the man and woman knew each other and the medical reports suggested there was no forcible sexual intercourse.

“It is an undeniable fact 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 an assurance of marriage. There could be a possibility of experimentation with erotic asphyxiation which is very much part of their sexual autonomy,” the judge said.

The judge also pointed out that the woman had failed to share the exact date of the incident in the FIR.

“The allegations that the accused committed sexual intercourse with the victim and captured photos of her naked body and subsequently abandoned her seems to be cloudy without a proper trial. Truthfulness or falsity of the allegations essentially pertains to the realm of evidence and the same cannot be pre-judged at this initial stage which warrants a trial to establish,” the judge said.

The court, however, noted that several rape survivors belong to socially disadvantaged and poor segments of the society and rural areas who are often lured into sex by men on the pretext of marriage. “The rape law often fails to capture their plight,” the court said.