Promise Of Marriage Made To A Married Woman Cannot Become A Basis For Rape Case: Kerala High Court

The Kerala High Court on Tuesday reiterated that a man's promise to marry an already-married woman is not enforceable in law, and any sexual relation between them on the basis of such a promise would not attract the ingredients of Section 376 of the Indian Penal Code. 

Quashing a rape case registered by the Punaloor Police Station in 2018, Justice Kauser Edappagath observed that the married woman voluntarily had sex "with her lover" and she knew pretty well that she cannot enter into a lawful marriage with him as she was already married. 

"Recently this Court in XXX Vs. State of Kerala [2022 KHC 296] has held that the promise alleged to have been made by the accused to a married woman that he could marry her is a promise which is not enforceable in law. Such an unenforceable and illegal promise cannot be a basis for the prosecution under Section 376 of IPC". 

According to the prosecution, the petitioner-accused sexually assaulted the the victim on several occasions in Australia after giving her a false promise of marriage. Though married, the woman was separated from her husband and divorce proceedings were also going on.

The woman in her statement to police said she had consented for the sexual relationship on being persuaded by the promise of marriage given by the petitioner.

"Though in the F.I.S. it is stated that the petitioner forced her to have sexual intercourse with him, on the entire reading of the F.I.S., it is evident that the sexual intercourse was consensual in nature. As stated already, her case is that she consented for sex persuaded by the promise of marriage given by the petitioner," said the court. 

The court further said that it is settled that that, if a man retracts his promise to marry a woman, consensual sex they had would not constitute an offence under Section 376 of IPC unless it is established that consent for such sexual act was obtained by him, by giving false promise of marriage with no intention of being adhered to and that promise made was false to his knowledge.

However, it added no question of promise to marry would arise in the case since the victim is a married woman who knew that legal marriage with the petitioner was not possible under the law. 

"Hence, I am of the view that the basic ingredients of Section 376 of IPC are not attracted. There is also nothing on record to attract the ingredients of Sections 417 and 493 of the IPC. There are no ingredients to attract the offence of cheating. There is no case for the 2nd respondent that the sex they had was after inducing a belief of lawful marriage". 

Quashing the case against the accused, the court said no purpose will be served in proceeding further with the matter.

Advocate Mahesh V. Ramakrishnan appeared on behalf of the petitioner. The respondents were represented by Public Prosecutor Sangeetha Raj. 

Case Title: Tino Thankachan v. State of Kerala & Anr. 

Citation: 2022 LiveLaw (Ker) 615

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