Allegation Of Rape On False Promise Of Marriage Can’t Legally Exist When Victim Is Already In Subsisting Marriage: Kerala High Court

The High Court was considering a bail application filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

The Single Bench of Justice Bechu Kurian Thomas stated, “The investigation conducted so far has revealed that the victim had been living with the petitioner till July 2025. In the meantime, the petitioner is alleged to have married another lady in January 2025 and even thereafter, he continued to live with the victim until July 2025. Though the allegations are serious, since the victim is already in a subsisting marriage, the allegation of sexual intercourse on the basis of a false promise of marriage cannot legally exist, atleast prima facie”, the Bench held.

Advocate Muhammed Zain Shabeer P.P. represented the Petitioner, while Public Prosecutor Prasanth M.P. represented the Respondent.

Factual Background

The Petitioner accused was booked in a case registered under Sections 64(2)(m) and 69 of the Bharatiya Nyaya Sanhita, 2023 (BNS). It was alleged that the accused had, from August 2016 till July 24, 2025, sexually assaulted the victim under the promise of marriage at various places and even lived with the victim.

Reasoning

On a perusal of the facts of the case, the Bench noted that the Petitioner is a Sub Inspector of Police, now serving in the Kerala Armed Police Battalion. The victim had married another person and is a mother of three children. In the year 2016, she was alleged to have been with the petitioner, and pursuant to a complaint by her husband, she was produced before the police station, where she refused to return and thereafter continued to live with the petitioner. Though the victim was allegedly separated from her husband, the marriage had not been dissolved by law.

Considering the fact that the prosecution was unable to convince the Court that custodial interrogation was necessary and having regard to the nature of the allegations, the Bench held that the custodial interrogation of the petitioner was not necessary. Referring to the judgment in Sushila Aggarwal and Others v. State (NCT of Delhi) and Another, (2020), the Bench held that he must subject himself to interrogation for the purpose of completing the investigation under a limited custody.

The Bench was of the view that the allegations could not legally exist, at least prima facie, as the victim was already in a subsisting marriage.

Thus, allowing the application, the Bench ordered the Petitioner to appear before the Investigating Officer as and when required.

Neutral Citation: Mahesh V.M. v. State Of Kerala (Neutral Citation: 2025:KER:64910)

Appearance

Petitioner: Advocates Muhammed Zain Shabeer P.P., Shibu Babu

Respondent: Public Prosecutor Prasanth M.P.

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