The Kerala High Court has said that the failure of a relationship to lead to marriage is insufficient to constitute rape if the partners have had a sexual relationship. A sexual relationship between two willing adults will not amount to rape unless the consent for sex was obtained by a fraudulent act or misrepresentation, the Kerala High Court on Friday said while granting bail to a Union government Standing Counsel who was earlier arrested in a sexual assault case filed by his colleague.
Justice Bechu Kurian Thomas granted bail to the Income Tax Department Standing Counsel Navaneeth Nath, who was arrested by the police here on June 21 on a complaint filed by a Kollam-native woman alleging he had raped her after giving false promise of marriage.
In the present case, the court, in its order, said even if a sexual relationship between two willing partners does not culminate in marriage, still the same will not amount to rape, in the absence of any factor that vitiates the consent for sex. "A sexual relationship between two willing adult partners will not amount to rape coming within the purview of section 376 of the IPC, unless the consent for sex was obtained by a fraudulent act or misrepresentation... A subsequent refusal to marry or a failure to lead the relationship into a marriage are not factors that are sufficient to constitute rape even if the partners had indulged in a physical relationship," Justice Thomas said in his order.
The court said the sexual relationship between a man and a woman can amount to rape only if it was against her will or without her consent or when consent was obtained by force or fraud. "Consent for sex obtained by a promise to marry will amount to rape only when the promise was given in bad faith or is vitiated by fraud or was not intended to be adhered to at the time of making it. In order to convert a physical relationship between a man and a woman into rape due to the failure to abide by the promise of marriage, it is essential that the decision of the woman to engage in the sexual act must be based on the promise of marriage," the order said.
Justice Thomas, while granting bail subject to some conditions, noted that even though the offences alleged are of a serious nature, the petitioner is not likely to flee from justice and has no criminal antecedents.
The allegation against Nath was that he had been in a relationship with his colleague, another lawyer, for over four years but in the end, he decided to marry another woman. The prosecution alleged that Nath had raped the victim many times in different places after promising to marry her but later decided to marry someone else.
When the complainant learnt of this, she met Nath's fiancee at a hotel and allegedly tried to take her own life. When she told the police the reason for her action, Nath was arrested last month and he then moved for bail at the Kerala High Court.
The counsel for Nath told the court that his party had every intention of marrying her and that the sexual relationship between them, which subsisted for many years, was absolutely consensual and loving. He further told the court that they were aware from the beginning that their relationship may face roadblocks as they belonged to different faiths but the complainant, knowingly took her chances and continued in the relationship.
The judge pointed out that since the case arose between a couple who had been in a relationship for over four years, the prosecution case may be affected by the Supreme Court decision in Pramod Suryabhan Pawar v The State of Maharashtra. "What the Supreme Court held in Pramod's case is that the long period of a relationship is indicative of an absence obtaining consent by promising to marry. In your (complainant) FIS (first information statement), nowhere is it indicated that you indulged in sex only with the belief that he is going to marry," remarked the Justice.
The court further said that in order to establish a false promise, the person who made the promise should have had no intention to uphold his word at the time of making it, and the said promise should have induced the woman to submit herself to the physical relationship. "There must be a direct nexus between the physical union and the promise of marriage," the court said.
The court said the observations made in this order are purely for the purpose of considering this bail application and shall not have any effect on the merits of the case in any other proceeding.
The bail was given to the lawyer after executing a bond for Rs one lakh with two solvent sureties each for the like sum.
Justice Bechu had earlier granted conditional pre-arrest bail to rape-accused actor-producer Vijay Babu last month. The judge noted that though stereotypical questions over whether the survivor was an ‘ideal victim’, and such other biases against rape survivors should be avoided, consensual relationships “should not be converted into instances of rape.” Babu, who is accused to sexually abusing a young actor in Malayalam cinema, had named her in a Facebook live video after the allegations became public, thus illegally revealing her identity.