Subsequent Refusal To Marry After Sex Not Sufficient To Constitute Offence Of Rape: Kerala High Court

While granting bail to a Central Government Counsel in a sexual assault case, the Kerala High Court held that a subsequent refusal to marry or a failure to lead the relationship into a marriage is not sufficient to constitute the offence of rape even if the partners had indulged in a physical relationship.

Justice Bechu Kurian Thomas observed that a sexual relationship between two willing adult partners will not amount to rape coming within the purview of section 376 of the IPC unless the consent for sex was obtained by a fraudulent act or misrepresentation.

"Even if a sexual relationship between two willing partners does not culminate in marriage, still the same will not amount to rape, in the absence of any factor that vitiates the consent for sex. A subsequent refusal to marry or a failure to lead the relationship into a marriage are not factors that are sufficient to constitute rape even if the partners had indulged in a physical relationship. The sexual relationship between a man and a woman can amount to rape only if it was against her will or without her consent or when consent was obtained by force or fraud."

The Court also added that consent for sex obtained by a promise to marry will amount to rape only when the promise was given in bad faith or is vitiated by fraud or was not intended to be adhered to at the time of making it.

"In order to convert a physical relationship between a man and a woman into rape due to the failure to abide by the promise of marriage, it is essential that the decision of the woman to engage in the sexual act must be based on the promise of marriage."

The Single Judge also ruled that to establish a false promise, the maker of the promise should have had no intention to uphold his word at the time of making it and the said promise should have induced the woman to submit herself to the physical relationship. This implies that there must be a direct nexus between the physical union and the promise of marriage.

The petitioner was arrested last month under Sections 376(2)(n) and 313 of the Indian Penal Code, after a sexual abuse complaint was lodged against him by a colleague who alleged that he sexually abused her, enticing her with a false promise of marriage.

When the matter was taken up yesterday, the Court made similar observations on the evolving nature of relationships among young adults. The Judge had added that this change in relationships has led to an increasing number of rape allegations being raised after these couples break up and marry others. However, this does not always imply that one of the partners was forced into having a sexual relationship on a false promise to marry.

Today, the Court granted bail to the petitioner subject to some conditions observing that although the offences alleged against him are serious, it was improbable that he would flee from justice since he is stated to be a central government counsel.

Senior Advocate Ramesh Chander instructed by Advocate C.P. Udayabhanu appeared for the petitioner and Advocate John S Ralph appeared for the de-facto complainant in the matter.