The Orissa High Court has said that if a consensual physical relationship was based on a promise of marriage which could not be materialised for some reasons, it cannot be considered rape.

The high court quashed the charge of rape faced by a Bhubaneswar-based man. The allegation against him was brought by a woman who is a friend of the petitioner and is in a matrimonial dispute with her husband for five years.

The other allegations against the petitioner such as cheating are left open for investigation, Justice R K Pattanaik said in the order.

“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 marry.

“In the former case, for any such sexual intimacy, an offence under Section 376 IPC is not made out, whereas, in the latter, it is, since the same is based on the premise that the promise of marriage was false or fake from the very beginning,” the high court order of July 3 read.

The Supreme Court in an order had said that if two persons maintained a physical relationship on an assurance of marriage to the victim, which due to some reasons failed to materialise later, it cannot be called rape with a claim that the promise had been broken, the bench observed.

“A sour relationship, if initially started and developed genuinely with friendship, should not always be branded as a product of mistrust, and the male partner should never be accused of rape,” it said in connection with the case.