Kerala High Court: In a bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’), for the offences punishable under Sections 84 and 69 of the Bharatiya Nyaya Sanhita, 2023 (‘BNS’), a Single Judge Bench of Bechu Kurian Thomas, J. concluded that the entire circumstances must be considered, especially when a married woman enters into a physical relationship with another person. If both parties are aware of the existing marriage, it cannot be alleged that sexual intercourse occurred based on a promise to marry.
Background
The prosecution case was that the accused, after giving a false promise of marriage, sexually assaulted the complainant and threatened to publish her photos and videos and borrowed a total amount of Rs.2,50,000/- and thereby committed the offences alleged. The accused was arrested on 13-06-2025, and he has been in custody since then.
The accused submitted that the prosecution’s allegations were entirely false and that the incident, as alleged, had not occurred. He further submitted that, even accepting the prosecution’s version, the alleged victim was a married woman and, therefore, the question of sexual intercourse based on a promise of marriage did not arise. It was also contended that a reading of the FIR indicated the case was primarily based on a financial dispute and that the allegation of rape under the guise of a marriage promise had been raised only to coerce him into yielding to unlawful demands. He further argued that, considering his young age, his continued detention ought not to be allowed.
On the other hand, the State opposed the bail application and submitted that the allegations were serious in nature and given that the accused had been arrested only on 13-06-2025, his continued detention was necessary.
Analysis and Decision
The Court, upon considering the rival contentions and perusing the statement of the victim recorded by the police, noted that the complainant was a married woman. In fact, one of the offences alleged against the accused was under Section 84 of the BNS, which pertains to enticing or taking away a married woman with criminal intent. Since the prosecution itself admitted that the de facto complainant was married, the Court observed that there could not be any sexual intercourse on the pretext of a promise to marry.
Relying on earlier decisions such as Anilkumar v. State of Kerala1, and Ranjith v. State of Kerala2, the Court reiterated that a promise of marriage cannot be legally valid when one of the parties is already in a subsisting marriage. In that context, the Court held that, prima facie, it was doubtful whether the offence under Section 69 of the BNS (relating to sexual assault on the pretext of marriage) could be attracted.
As for the offence under Section 84, which is bailable, the Court found that continued detention of the accused was not necessary.
In this context, the Court observed that, while dealing with cases alleging rape based on a promise of marriage, it was difficult at that stage to conclusively determine whether the relationship was consensual or not. The Court emphasised that the entire set of circumstances must be considered, particularly when a married woman enters a physical relationship with another individual. If both parties were aware of the subsistence of the marriage, it could not be alleged that sexual intercourse between them occurred on the basis of a promise to marry.
Taking into consideration the above circumstances, the Court was of the view that the case warranted the release of the accused on bail.
[X v. State of Kerala, 2025 SCC OnLine Ker 4414, decided on 02-07-2025]
Advocates who appeared in this case:
For Petitioner: Ameen Hassan K., Rebin Vincent Gralan
For Respondent: Noushad K A, PP
1. [2021 (1) KHC 435]
2. [2022 (1) KLT 19]
