'Consensual Relationship, Promise To Marry Was Not False': Kerala High Court Quashes Rape Case

The Kerala High Court on Tuesday quashed rape case against a 31-year-old man, observing that he and the complainant were in a consensual relationship and his promise to marry her was not with an intention to deceive her.

The accused and the complainant had worked together in the Malayalam Serial, 'Akashadooth'. The case registered in 2017 under Sections 417, 354 A, 354B and 376 of IPC alleged that the accused gave a false promise of marriage to the woman and "sexually assaulted" her at various places. It was also alleged that he later on resiled from the promise of marriage and made preparations to marry another girl.

Justice Kauser Edappagath reiterated that in an allegation of rape on false promise of marriage, the courts have to carefully examine whether the accused actually wanted to marry the victim or had malafide motives and had made a false promise to this effect. 

The Court took note of the Apex Court decisions in Deepak Gulati v. State of Haryana (2013) and Dhruvaram Murlidhar Sonar (Dr) v. State of Maharashtra (2019) and said it has been observed that if an accused had not made the promise with the sole intention to seduce the victim to indulge in sexual acts, such an act would not amount to rape and that if the accused had any mala fide intention or clandestine motives, it would be a clear case of rape.

"Consent is at the center of the offence of rape. If we analyze Section 375 of IPC, there is no such mention of the consent obtained under the false promise of marriage. Section 90 of IPC refers to the expression ‘consent’. Section 90, though, does not define ‘consent’, describes what is not consent. It says that ‘consent’ is not consent if it is given by a person under a misconception of fact and if the person doing the act knows or has reason to believe that the consent was given in consequence of such misconception. Relying on this, the courts have interpreted the word ‘consent’ in the description 'secondly' under Section 375 of IPC, i.e., 'without her consent', and held that any consent given under a misconception of fact is vitiated," the court observed.

Advocate C.S. Sumesh on behalf of the petitioner argued that no offence is made out in the instant case even if the entire allegations in the FI statement, as well as the materials collected during investigation are believed in its entirety. It was contended that the victim and the petitioner had been in love at the time and the alleged sexual relationship they had was consensual. 

On the other hand, it was contended by the Senior Public Prosecutor C.N. Prabhakaran that the statement given by the victim would reveal that the ingredients of the offence of rape and cheating are attracted in this case, and that when a prima facie case is made out, the jurisdiction of the court under Section 482 Cr.P.C. cannot be invoked. 

Justice Edappagath said petitioner and the woman admittedly were in a consensual relationship and voluntarily went together to several places where they stayed together and had sexual relationship. The court also noted that the woman had paid the bills of the hotels in which they stayed.

"It is absolute that the allegations in the FI statement do not on their face indicate that the petitioner had given 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. That apart, it is seen from the FIS of the 2nd respondent as well as from her statement recorded under Section 164 of Cr.P.C that the petitioner before departing to Dubai on visiting visa in April, 2015, persuaded the 2nd respondent to register the marriage, but she declined the said move stating that she wanted the marriage to be conducted with the consent of their respective families," said the court.

The court noted that the woman also knew his family was opposed to their marriage and same was conveyed to her unequivocally by none other than the mother of the petitioner.

"These circumstances do indicate that the petitioner was in fact ready to marry the 2nd respondent and the promise made by him was not a false one or lacking bona fide even if there was a promise to marry," the court observed. 

The Court went on to observe that their relationship had strained over time, and that the alleged physical relationship could only be termed as one that was out of love. 

"In short, the alleged sexual relationship between the petitioner and the 2nd respondent can only be termed as something out of love and passion for the petitioner and not on account of misrepresentation made to her by the petitioner. That apart, a reading of the FI statement would disclose the consent on the part of the 2nd respondent as defined under Explanation 2 of Section 375 of IPC. Therefore, I am of the view that even if the facts set out in the FI statement are accepted in totality, no offence under Section 375 of IPC is made out," the court observed while quashing the criminal proceedings. 

Advocate K.V. Rashmi also appeared on behalf of the respondents. 

Case Title: Emmanvel Peter v. State of Kerala & Anr. 

Citation: 2023 LiveLaw (Ker) 31 

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