Ker HC | Sex on promise of marriage: Not an offence if alleged accused marries purported victim shortly thereafter – no misconception of fact in girl’s consent

Kerala High Court: R. Narayana Pisharadi, J. allowed the petition filed by the husband and directed the Court of Judicial Magistrate First Class to stop all the proceedings against him under Section 376 of the Penal Code, 1860.

In the present case, the petitioner and the first respondent were in love with each other and petitioner had promised to marry her. Respondent had sexual intercourse with the petitioner on the basis of the promise of marriage. When the petitioner took her to the house of his relatives, they threatened her. Apprehending that they would harm her she escaped and reported the matter to police and charges under Section 376 of Penal Code, 1860 were set against him. After a short time span, both petitioner and respondent solemnized their marriage under the Special Marriage Act, 1954. Petitioner sought to set aside the proceedings against him by invoking power of the Court under Section 482 of the Code of Criminal Procedure, 1973.

The main question to be considered by the Court was whether the marriage between the accused and the victim can be considered as a sufficient ground to quash the prosecution proceedings against the petitioner.

The respondent submitted that she had no grievance against the petitioner and no objection in setting aside the proceeding against him. In the affidavit filed by the respondent she had stated that she was forced to sign the first information statement at the instance of her mother and other relatives and that she had no intention to implicate the petitioner in a case of rape.

The Court placed relevance on Anurag Soni v. State of Chhattisgarh, 2019 SCC OnLine SC 509 where the principle was laid that if it was found that from the inception the accused had promised the prosecutrix to marry her without any intention to marry and the consent for sexual intercourse was based on such promise then such consent could be said to be obtained on a misconception of fact as per Section 90 of IPC. It was also acknowledged that consensual physical relationship between the parties would not constitute an offence punishable under Section 376 of IPC and it must be carefully examined that whether the accused had actually wanted to marry the victim or had made a false promise of marriage only to satisfy his lust.

It was noted that in the present case, the petitioner had no fraudulent intention in promising marriage to the respondent. The promise made by him was not a false promise made only with the intention to satisfy his lust. This was evident from the fact that he married the victim lady within a short period after the incident.

Considering all the facts and circumstances it was a fit case for exercising jurisdiction under Section 482 CrPC, and proceedings against petitioner were set aside.[Denu P. Thampi v. X, 2019 SCC OnLine Ker 1639, decided on 27-05-2019]