Kerala High Court: Dr Kauser Edappagath, J., addressed a matter wherein a married woman voluntarily had sex with her former lover.

In the present matter, the petitioner who was the sole accused faced trial for the offences punishable under Sections 376(1) and 376(2)(n) of the Penal Code, 1860.

The prosecution’s case was that the petitioner after giving a false promise of marriage sexually assaulted the victim/2nd respondent on several occasions.

In Court’s opinion, there was nothing to attract the basic ingredients of Sections 376(1) or 376(2)(n) of the IPC.

As per the FIS and statement under Section 164 CrPC, the petitioner and the victim studied together and they were in love. In fact, they had decided to marry, but due to some reasons beyond their control, they could not marry.

Later, the victim married another person and the alleged sexual acts with the petitioner were taken place during the subsistence of the marriage of the victim with the said person.

Respondent 2’s submitted that it was not her case that the sex they had was forcible. But according to her, she consented to sex persuaded by the promise of marriage given by the petitioner.

“If a man retracts his promise to marry a woman, consensual sex they had would not constitute an offence of rape under Section 376 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 being adhered to and that promise made was false to his knowledge. (Ranjith v. State of Kerala, [2022 (1) KLT 19]

In the instant matter, the married woman who had sex with her former lover, knew pretty well that she cannot enter into a lawful marriage with the petitioner.

Supreme Court in Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 and in Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191, while drawing distinction between rape and consensual sex observed that the Court must very carefully examine whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust.

In drawing a distinction between mere breach of a promise and not fulfilling a false promise, it was further observed that, if the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape and that if the accused had any mala fide intention or had clandestine motives, it is a clear case of rape.

High Court opined that the sex that the petitioner and the victim had was purely consensual in nature.

“Nothing on record to show that the petitioner had made a false promise only to satisfy his lust.” 

Further, the Bench stated that no question of promise to marry arises inasmuch as 2nd respondent was a married woman and she knew that a legal marriage with the petitioner was not possible under the law, hence offence of rape cannot be constituted as it was apparent that the consent was not given by her on the basis of any misconception.

Therefore, all the further proceedings stood quashed. [X v. State of Kerala, Crl. MC No. 4933 of 2021, decided on 29-3-2022]

Advocates before the Court:

For the Petitioner:

By Advs.

Nirmal V Nair, M. Aneesh and Ajai Babu

Other Present:

Sri Sangeetha Raj – Public Prosecutor

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