The Kerala High Court on Thursday, October 6 observed that an allegation of rape on false promises to marry will not stand if the woman knew that the man was already married and still continued sexual relations with him. Justice Kauser Edappagath made the observation while hearing a petition filed by a 33-year-old man to quash the FIR filed against him alleging that he had sexual relations with a woman by giving false promises of marriage, several times between 2010 and 2019. The man has also been accused of obtaining an amount of Rs 15 lakh and five sovereigns of gold from the woman.
The judge observed that the man and woman had been in a relationship from 2010 till 2019. Between 2013 and 2014, she came to know that he was married. However, after the man said that he was living separately and moving for divorce, she continued the relationship. A while after this, she came to know that he had allegedly been in other relationships, and she backed out of the relationship.
The HC observed that the woman came to know that he was married and “fully knowing the same, she continued the relationship and had sex with him”. The court said that any sexual relations had between such a couple could only be termed as one on account of love and passion, and not based on any false promise to marry.
“The admitted fact that the 4th respondent [the woman] is having a relationship with the petitioner [the man] since 2010 and she continued the relationship knowing about his marriage from 2013 onwards would nullify the story regarding the sexual intercourse on the false pretext of marrying her. The alleged sex can only be termed as one on account of love and passion for the petitioner and not on account of misrepresentation made to her by the petitioner,” read the order.
The court reiterated that if a man retracts his promise to marry a woman, then 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 adhering to the same and that the promise made was false to his knowledge.
Further, stating that consent was at the centre of the offence of rape, the judge observed that while Section 90 of IPC defines ‘consent’, it does not describe what is ‘not consent’. “It says 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 reason to believe that the consent was given in consequence of such misconception. Relying on this, the courts have interpreted the word ‘consent’ in the description ‘secondly’ under Section 375, i.e., ‘without her consent’, and held that any consent given under a misconception of fact is vitiated and, therefore, the act becomes an act without consent, thereby making it rape,” the court said.
The court then passed an order to quash the FIR registered against the man for the alleged commission of offences punishable under Sections 406 (criminal breach of trust), 420 (cheating and dishonestly inducing delivery of property) and 376 (rape) of Indian Penal Code (IPC).
(With IANS inputs)