Consensual Sexual Intercourse Without An Element Of 'Misconception Of Fact' Not Rape: Kerala High Court Reiterates

In this case, the complainant alleged that the petitioner who was a tempo van driver subjected her to rape in 2005, 2011, 2015 and 2016.

Justice A. Badharudeen observed that no complaint was lodged till 2017 and a crime was registered alleging the commission of rape only after a long period of 13 years. The Court noted that the sexual relations between the complainant and petitioner were voluntary with her consent and not based on any misconception of fact.

“Thus it has to be summarised that when, prima facie, materials would show that the prosecutrix was subjected to sexual intercourse on the promise of marriage without any bona fides under a misconception of fact, then the consent is vitiated. If the materials would show that the relationship is purely consensual without an element of misconception of fact, the same is not rape. Be it so, no doubt, the question to be considered by a court while considering quashment of the proceedings is, whether at the very inception there is mutual consent to have sexual intercourse or the same is under a misconception of fact, on the promise of marriage or otherwise.”

In the facts of the case, the petitioner was a tempo van driver and he met the complainant when her family hired his van for a trip to Kodaikanal in April 2005. It is alleged that they got close through the phone and accused subjected her to rape in his van in July 2005. It is also alleged that he photographed her visuals and outraged her modesty. After that, the complainant alleges that the accused committed rape on her in November 2011, October 2015 and November 2016 at different places. The petitioner was alleged to have committed offences punishable under Sections 376 (punishment for rape), 342 (wrongful confinement in secrecy) of the IPC and Section 66E (punishment for violation of privacy) of the IT Act.

The Counsel for petitioner denied allegations of rape and stated that they were in a consensual sexual relationship. It was stated that the complainant never lodged a complaint alleging rape in 2005 and prima facie evidence shows that they were in a purely consensual relationship.

The Court placed its reliance upon a catena of Apex Court decisions in Uday v. State of Karnataka (2003), Dileep Singh v State of Bihar (2005), Yedla Srinivasa Rao v. State of A.P (2006), Prashant Bharti v State (NCT of Delhi) (2013), State of UP v Noushad (2013), Deepak Gulati v. State of Haryana (2013), Dhruvaran Murlidharan Vs. State of Maharashtra (2019), Anurag Soni v State of Chhattisgarh (2019) and Sonu @ Subhash Kumar v. State of Uttar Pradesh & Anr (2021) wherein it was discussed that promise to marry and its subsequent breach alone would not constitute rape. It stated that there is a distinction between a mere breach of a promise and a false promise to marry. In these cases, the Apex Court attempted to distinguish between 'consensual sex' and 'rape'. It was stated that a promise to marry must have been made with the sole intention to seduce the prosecutrix to indulge in sexual acts to attract an offence of rape.

The Court also referred to Naim Ahmed v. State (NCT of Delhi), 2023 wherein the apex court laid down that it would be folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence of rape under Section 376.

Referring to the precedents mentioned above, the Court noted that a promise to marry made without any intent or inclination to marry the victim would vitiate consent given under Section 90 and would attract prosecution under Section 376 of the IPC. It stated that consent obtained through false promises to marry from the very inception of a relationship cannot be understood as valid consent.

The Court said: “…legal position is emphatically clear that a promise to marry, without having any intention or any inclination to marry the victim, will vitiate the consent in terms of Section 90 of IPC, concomitantly if consent has been given under fear of injury or misconception of fact, such consent obtained, cannot be construed to be valid consent. So also, when the prosecutrix had sexual intercourse with the accused on the bona fide representation made by the accused that he would marry her, the same was a false promise at the instance of the accused and the same is hit by Section 90.”

In the facts of the case, the Court noted that the prosecution case does not establish that the consent of the complainant was obtained out of any misconception of fact.

Accordingly, the Court quashed all the proceedings against the petitioner.

Counsel for Petitioner: Advocates C P Udayabhanu, Navneeth N Nath

Counsel for Respondents: Senior Public Prosecutor Renjith George, Public Prosecutor M P Prasanth

Citation: 2024 LiveLaw (Ker) 446

Case Title: Sujith v State of Kerala

Case Number: Crl.M.C.Nos.9538, 9546 and 9561 of 2023

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