'No Specific Allegation Of False Promise of Marriage': Kerala High Court Quashes Rape Case Against Lawyer

Quashing a rape case against a lawyer, the Kerala High Court on Thursday said there is no specific allegation in the prosecutrix's statement that he had given a false promise to marry her based on which she had been induced into a sexual relationship.

The prosecution case was that the accused had sexual intercourse with the woman on the basis of a false promise of marriage. 

Though the woman had given her no objection for quashing the proceedings, the public prosecutor had argued that the high court cannot quash a rape case even if the dispute has been settled between the parties.

Observing that the allegation is "so vague" and that woman has not been even able to disclose the dates of of alleged sexual intercourse, Justice Kauser Edappagath said admittedly the couple was in a consensual relationship for the past four years.

"There is absolutely no specific allegation in the FI statement that the petitioner had given a promise to the 2nd respondent to marry which at the inception was false and based on which the 2nd respondent was induced into a sexual relationship. There is also no allegation in the FI statement that when the petitioner promised to marry the 2nd respondent, it was done with bad faith and with intention to deceive her," said the court.

The court further observed that the relationship between the accused and prosecutrix strained when she "entertained a suspicion" that he had developed intimacy "with another girl."

"In short, the alleged sex between the petitioner and the 2nd respondent can only be termed as one on account of love and passion for the petitioner and not on account of misrepresentation made to her by the petitioner. That apart, the reading of FI statement would disclose the consent on the part of the 2nd respondent as defined under Explanation 2 of Section 375 of IPC," it added.

Both the petitioner and prosecutrix are lawyers in the high court.

Observing that consent is at the centre of the offence of rape, the court said:

"...it is trite that if a man retracts from his promise to marry a woman, consensual sex they had will not constitute an offence of rape u/s 376 of IPC unless it is established that consent for such act was obtained by him by giving a false promise of marriage with no intention of being adhered to and that promise made was false to his knowledge".

On behalf of the petitioner accused it was contended by Senior Advocate Ramesh Chander and Advocates C.P. Udayabhanu, Rassal Janardhanan A., Abhishek M. Kunnathu, Boban Palat, P.U. Pratheesh Kumar, P.R. Ajay, Balu Tom, Bonny Benny and Govind G. Nair, that no offence under Section 376 IPC is be made out in the case since the statement given by the woman would itself reveal that that they had been in love and were in a relationship for the past 4 years, and the sexual intercourse, if any, they had was only consensual in nature.

Quashing the FIR, the court in the judgment relied upon apex court decisions in Deepak Gulati v. State of Haryana (2013) and Dhruvaram Murlidhar Sonar (Dr) v. State of Maharashtra (2019) which had distinguished between mere breach of a promise and non fulfilling a promise.

"It was observed that if the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act will not amount to rape and that if the accused had any malafide intention or clandestine motives, it is a clear case of rape," the court said.

The Court also took note of the recent Apex Court decision in Shambhu Karwar v. State of Uttar Pradesh (2022) wherein it was held that in a prosecution for rape on the false promise of marriage, the crucial issue to be considered is whether the allegation indicates that the accused had given a promise to the victim to marry which at the inception was false and based on which the victim was inducted into a sexual relationship. The said decision had also emphasized that the test to exercise power under Section 482 of Cr.P.C is whether the allegation in the FIR discloses the commission of a cognizable offence.

Senior Public Prosecutor P.G. Manu and Advocate V. John Sebastian Ralph appeared on behalf of the respondents in the instant case. 

Case Title: XXX v. State of Kerala & Anr. 

Citation: 2022 LiveLaw (Ker) 567

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