Whether Consent Was Obtained Based On Mistake Of Fact On Promise Of Marriage To Be Determined At Trial: Kerala HC Declines To Quash Rape Case

The petitioner was alleged to have committed sexual intercourse with the de facto complainant by giving her promise to marriage. He has approached the Court to quash the proceedings initiated against him.

Justice A. Badharudeen declined to quash criminal proceedings initiated against the petitioner and held thus:

“Analysing the facts of the case, as discussed, whether the relationship on misconception of fact on the promise of marriage, is a matter to be decided during evidence, in a case where the prosecution allegation are made out prima facie. Therefore, this Court cannot quash the proceedings, holding that there are no materials, prima facie, to go for trial.”

In this case, the petitioner contended that no offence under Section 376 of IPC was made out and that sexual intercourse was not on the premise of marriage.

On analyzing the First Information Statement, the Court noted that the de facto complainant lived together with another man without legal marriage and a child was also born in that relationship.

It was alleged that the petitioner got acquainted with the de facto complainant and maintained sexual relations under the promise of marriage after the first man retracted from relationship and eloped.

It is alleged that the petitioner did not give his details in the hospital records when the child was born and that he willfully entered another man's name as the name of the child's father. It is also alleged that the petitioner agreed to marry the de facto complainant on several occasions but retracted from marriage and committed the offence of rape under the promise of marriage.

The Court analyzed various decisions where the prosecutrix was subjected to rape by the accused on the repeated promise of marriage with the assurance of marriage by referring to Uday v Karnataka (2003), Deelip Singh v State of Bihar (2005), Yedla Srinivasa Rao v. State of A.P (2006), Prashant Bharti v State (NCT of Delhi) (2013) and other Apex Court decisions.

The Court also analyzed Apex Court decisions that examined how consent varies between rape and consensual relationship. Referring to decisions, the Court stated that there is a clear distinction between mere breach of promise and false promise of marriage. It also relied upon Apex Court decisions in Dhruvaram Murlidhar Sonar (Dr.) v. State of Maharashtra & Ors., Sonu @ Subhash Kumar vs. State of Uttar Pradesh, Naim Ahmed v State (NCT of Delhi) to state that every breach of promise to marry is not rape.

The Court also referred to Anurag Soni v. State of Chhattisgarh where the Apex Court laid down that sex after obtaining consent by giving a false promise of marriage is rape.

Referring to a catena of decisions, the Court stated that consent is vitiated if it was obtained under fear of injury or misconception of fact. It noted that there is a false promise of marriage if the accused committed sexual intercourse on making bonafide representations of marriage and later retracts from the said promise of marriage.

It said, “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.”

As such, the Court dismissed the petition and directed the matter to be sent for trial.

Counsel for Petitioner: Advocate Bharath Mohan, N Krishna Prasad,

Counsel for Respondents: Public Prosecutor M P Prasanth

Citation: 2024 LiveLaw (Ker) 511

Case Title: XXX v State of Kerala

Case Number: CRL.MC NO. 5847 OF 2022

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