Kerala High Court: In a bail matter, P.V. Kunhikrishnan, J., noted the position of law that, a promise to marry made to married women is not legally enforceable, the offence of rape is not attracted.

The prosecution case was that on a day in the month of April 2021, on a false promise of marriage, the accused took the de facto complainant to a hotel and committed rape on her without her consent.

Hence, it was alleged that the accused committed the offence.

Petitioner’s counsel submitted that even if the entire allegations were accepted the offences under Section 376 IPC was not made out.

The counsel submitted that even according to the de facto complainant, she was married at the time of the alleged incident. In such circumstances, the allegation that the rape was committed promising marriage will not stand.

Further, the counsel took the Court through the Judgment of this Court in which it was stated that promise to marry made to married women is not legally enforceable, offence of rape not attracted.

In view of the above-stated facts, Court stated that the petitioner can be released on bail o stringent conditions.

Bench stated that it is a well-accepted principle that bail is rule and jail is the exception. Supreme Court in Chidambaram P. v. Directorate of Enforcement, (2019) 9 SCC 66, observed that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial.

High Court while allowing the bail application issued the following directions:

  1. Petitioner shall be released on bail on executing a bond for Rs 50,000 with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court.
  2. The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.
  3. Petitioner shall not leave India without permission of the jurisdictional Court.
  4. Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
  5. Petitioner shall appear before the Investigating Officer on all Mondays at 10 am till the final report is filed.
  6. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. The prosecution and the victim are at liberty to approach the jurisdictional court to cancel the bail, if there is any violation of the above conditions. [Faris v. State of Kerala, 2022 SCC OnLine Ker 2251, decided on 6-5-2022]

Advocates before the Court:

By Adv. Nireesh Mathew

By Adv. Public Prosecutor Adv. Sanal P. Raj – P.P.

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