Kerala High Court


Kerala High Court: In a petition filed under Section 482 of the Code of Criminal Procedure (CrPC) for quashing the First Information Report (FIR) for offences under Sections 406, 420 and 376 of the Penal Code, 1860 (IPC), Kauser Edappagath, J. has reiterated that if a man retracts his promise to marry a woman, then the 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 being adhered to , and that promise made was false to his knowledge. Further, the prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that the accused had no intention to marry the prosecutrix at all from the very inception.

In this case it was alleged that the petitioner, by giving a false promise of marriage to the respondent, had sexual intercourse with her in several times and thereby committed the offence of rape. Further, it was alleged that during the period of their good relationship, the petitioner dishonestly induced the respondent to deliver money and gold, thereby committing the offence of cheating and criminal breach by not returning the same.

The Court observed that Section 375 IPC, inter alia, states that a man commits rape if he had any form of sexual intercourse with a woman without her consent. Consent is at the centre of the offence of rape. Further, Explanation 2 to Section 375 IPC refers to the form of ‘consent’, and there is no such mention of the consent obtained under the false promise of marriage. Section 90 of IPC refers to the expression ‘consent’, though, it does not define ‘consent’, but describes what is not consent, and lays down 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 a reason to believe that the consent was given in consequence of such misconception. Further, it was viewed that the description ‘secondly’ under Section 375, i.e., ‘without her consent’, was interpreted by many Courts as any consent given under a misconception of fact and, therefore, the act becomes an act without consent, thereby making it rape.

The Court referred to the decision in Uday v. State of Karnataka, (2003) 4 SCC 46, wherein it was held that “a false promise to marry cannot come within the ambit of ‘misconception of fact’ and that the consent given by the woman to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact” However, the Court referred to the decision in Deelip Singh v. State of Bihar, (2005) 1 SCC 88, wherein it was held that a false promise to marry falls within the ambit of the description “secondly” of Section 375 i.e. “without her consent”, and a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her will vitiate the consent given.

Further, the Court referred to the decision in Pradeep Kumar v. State of Bihar, (2007) 7 SCC 413, wherein the Court clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her will vitiate the consent. It also cited the decisions in Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 and in Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191, wherein the Court differentiated between rape and consensual sex, and observed that the Court must very carefully examine whether the complainant had wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust. Further, by 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 will 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.

The Court further referred to the decision in Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608, wherein it was held that not every failed promise to marry could lead to a rape charge; and where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a ‘misconception of fact’ that vitiates the woman’s ‘consent’ under Section 375 (rape) of IPC, however, a breach of a promise cannot be said to be a false promise, as to establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. Thus, two propositions must be confirmed, to establish whether the ‘consent’ was vitiated by a ‘misconception of fact’ arising out of a promise to marry:

(i) the promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given

(ii) the false promise itself must be of immediate relevance or bear a direct nexus to the woman’s decision to engage in sexual act.

The Court observed that after examining the statements of the respondent recorded under Section 161 and Section 164 of CrPC the allegation of sexual intercourse between the petitioner and the respondent is a vague allegation, as there is no specific mention of the date, time, and other details of those alleged sexual acts under the pretext of marriage. Also, the respondent, upon interrogation, could not identify the hotel or the room to support her version. It was also viewed that the relationship between the petitioner and the respondent appears to be purely consensual in nature, as when the respondent came to know that the petitioner was married, she continued the relationship and had sexual intercourse with him, and their relationship was in existence prior to the marriage of the petitioner and continued to subsist thereafter and even after the petitioner obtained the divorce

The Court further observed that there was no evidence to reveal that the petitioner made any promise with the sole intention to seduce her to indulge in sexual acts and it is apparent that the petitioner had no mala fide intention or clandestine motives to conduct the alleged rape under the pretext of marriage. Further, the marriage could not be materialised as the respondent withdrew from the marriage, doubting the petitioner’s morality and on account of other unforeseen circumstances beyond the control of the petitioner.

Moreover, it was observed that the allegations of offence under Section 406 or 420 IPC, are also vague, as there was no allegation that there was an intention to deceive on the part of the petitioner at the time of handing over the money and gold ornaments. Thus, no fraudulent or dishonest inducement under the pretext of marriage can be revealed to attract the offence under Section 406 or 420 of IPC.

[Sreekanth Sasidharan v. State of Kerala, 2022 SCC OnLine Ker 4907, decided on 06.10.2022]

Advocates who appeared in this case :

Counsel for Petitioner:

Advocate Lal K.Joseph

Advocate A. A.Ziyad Rahman

Advocate Suresh Sukumar

Advocate V.S. Shiraz Bava

Senior Advocate P Vijaya Bhanu

Counsel for Respondents:

Senior Government Pleader T.V.Neema

Advocate S. Sreekumar

Advocate M.B.Shyni

Advocate Deepak Raj

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