In a significant order dated October 06, 2022, the Kerala High Court observed that a woman cannot allege rape on false promise to marry if she knew that the man was already married and yet continued to be in a sexual relationship with the him.
The high court remarked that any sex between a couple – where either partner is married – could only be termed as account of love and passion, and not based on any false promise to marry.
READ ORDER | Can A Man Be Charged With Rape On Promise Of Marriage If He Marries Another Woman? Kerala High Court Grants Bail To Central Government Standing Counsel
Case:
According to the prosecution, the accused continuously raped the complainant woman between 2010 and 2019, by giving her a false promise of marriage. It is alleged that sexual intercourse with the woman was undertaken at several places in India and abroad. However, the woman only learnt that the accused man was married about 5-6 years ago.
According to the woman, she claimed that the petitioner had promised to divorce his wife, however, the woman later learnt of him other affairs as well.
It is further alleged that during the period of their good relationship, the petitioner dishonestly induced woman to deliver an amount of Rs 15,00,000 and five sovereigns of gold and committed the offence of cheating and criminal breach by not returning the money and gold.
Submissions by Complainant Woman
Senior Advocate S Sreekumar, appearing for the complainant, submitted that the statement discloses serious allegations of sexual assault and that it is impermissible to quash criminal proceedings under Section 482 of Code of Criminal Procedure, when there are serious triable allegations in the complaint.
Senior Public Prosecutor TV Neema also supported the argument against quashing the case.
Arguments by Accused
Advocate Lal K Joseph, appearing for the petitioner, argued that the statement of the complainant, together with the materials collected during investigation, even if taken at their face value, do not prima facie constitute any offence or did not make any case against the petitioner.
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Kerala High Court
At the outset, Justice Kauser Edaggapath of the Kerala High Court noted that the complainant and the petitioner were in a consensual relationship since 2010, and despite learning of his marital status, the woman still continued to be in a sexual relationship with him until 2019.
From the complainant’s statement and other material on record, the Court concluded that the petitioner had no mala fide intention or clandestine motives to conduct the alleged rape under the pretext of marriage. The Court remarked,
The admitted fact that the woman is having a relationship with the petitioner since 2010 and she continued the relationship knowing about his marriage from 2013 onwards would nullify the story regarding the sexual intercourse on the false pretext of marrying her.
The alleged sex can only be termed as one on account of love and passion for the petitioner and not on account of misrepresentation made to her by the petitioner.
With reference to the offence under Section 406 or 420 of IPC – with regards to the allegation about obtaining Rs 15,00,000 and five sovereigns of gold ornaments giving a false promise of marriage – the Court opined,
On investigation, it was found that there was no solid evidence with the victim of the offence of cheating and breach of trust. Hence, offences under Sections 406 and 420 of IPC are also not attracted.
READ ORDER | Delhi High Court Clarifies Sex On Promise Of Marriage Is Not Always Rape
What Is Consent?
Referring to multiple precedents, the Court reiterated that if a man retracts his promise to marry a woman, then consensual sex they had will not constitute an offence of rape under Section 376 of the IPC unless it is established that the consent for such sexual act was obtained by him by giving false promise of marriage with no intention of adhering to the same and that the promise made was false to his knowledge.
The Kerala High Court subsequently quashed the FIR against the petitioner.
READ ORDER | Woman Can't Allege Rape If She Continued Sexual Relationship With Married Man For Many Years: Kerala High Court
— Voice For Men India (@voiceformenind) October 10, 2022
▪️HC: "Woman was in relationship since 2010…even after learning his marital status in 2013, continued relationship till 2019"https://t.co/tgzuQX3vQJ
WATCH VIDEO:
Late Ram Jethmalani On Marital Rape Law
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