Long Cohabitation Shows That Relationship Partook Character Of Consensual Sex: Kerala High Court Quashes Rape Case

The accused, booked under Sections 493, 496 and 376 of the IPC, had approached the High Court by filing a petition under Section 482 of the CrPC to quash the proceedings against him in the said case.

The Single Bench of Justice G. Girish held, “The consent given by the prosecutrix 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. A false promise is not a fact within the meaning of the Code. A promise to marry without anything more will not give rise to misconception of fact within the meaning of Section 90 IPC. However, the position will be different if it is shown that the accused, with a view to elicit the assent of the victim, gave the false promise of marriage, without having the intention or inclination to marry her, and made the victim submit herself to him, and later on deceived her by backtracking from the promise of marriage.”

“The long cohabitation of the accused and victim over a period of more than eight years itself show that their relationship partook the character of consensual sex, and that the accused and victim had been behaving with each other like husband and wife. The fact that the accused went in search of greener pasture for giving vent to his promiscuous sexual urge, and started a new relationship in the nature of marriage with another lady, by itself will not bring his prior relationship with the victim with in the meaning of rape. Hence the proceedings initiated against the accused in connection with the commission of rape, is primafacie unsustainable”, it added.

Advocate B. Mohanlal represented the Petitioner, while Advocate Ajith Krishnan represented the Respondent.

Factual Background

The de facto complainant/second respondent is a widow having an 18-year-old daughter and a 16-year-old son. Her husband died in the year 2013. During 2009, the petitioner befriended the de facto complainant by calling her on the mobile phone and rendered financial assistance to her. It was alleged that the petitioner came to the room which the de facto complainant was occupying in connection with her business of sale of ‘agarbathi’ and ‘olibanum’, and indulged in a sexual relationship with her after making her believe that he would marry her. After the death of the husband of the de facto complainant, the petitioner resided along with the de facto complainant and her children and maintained a relationship with her.

When the de facto complainant insisted on the performance of a marriage, the petitioner tied a knot in the gold chain worn by her and made her believe that he had married her. The relationship between the petitioner and the de facto complainant went on for years. While so, the de facto complainant came to know that the petitioner had married another woman residing at Aryanad. Though the de facto complainant tried to contact the petitioner on several occasions thereafter, he did not respond. Though the de facto complainant came to the office of the petitioner, the petitioner allegedly did not care to accept her, and instead, shouted at her to leave that place. Thus, the petitioner was booked in the criminal case.

Arguments

It was the case of the petitioner that the consensual relationship between him and the de facto complainant would not constitute the offence of rape. He denied the accusation that he had offered to marry the de facto complainant.

Reasoning

The Bench was of the view that prosecution for the commission of the offences under Sections 493 and 496 I.P.C incorporated in the final report was not maintainable, since under Section 198 Cr.P.C, the court concerned was proscribed from taking cognisance of the said offences except upon a complaint made by a person aggrieved by the offence.

The Bench next dealt with the alleged commission of an offence under Section 376 I.P.C. On a perusal of the facts revealed from the prosecution records, the Bench noted that the sexual relationship between the petitioner and the de facto complainant was purely consensual. “It is true that the de facto complainant had come forward with a contention that she extended consent for the above relationship believing the offer of marriage by the petitioner. However, it is not possible to attribute any credence to the aforesaid contention of the de facto complainant since it is seen that even as per her version she had been maintaining relationship with the petitioner from the year 2009 which was about four years prior to the death of her husband”, it noted.

“It is not possible to accept the contention of the de facto complainant that she had extended consent for sexual relationship with the petitioner at a time when her husband was alive, believing the offer made by the petitioner to marry her. The subsequent conduct of the de facto complainant maintaining the relationship with the petitioner for about four years after the death of her husband, also show that the sexual relationship between the petitioner and the de facto complainant cannot be classified as rape”, it added.

Referring to various judgments relating to false promise to marry, the Bench asserted,“Thus, the consistent view being followed in the aforesaid judicial precedents is that absence of consent cannot be presumed in every case where the prosecutrix alleges that she indulged in sexual intercouse with the offender believing the offer of marriage made by him. For bringing home the offence of rape, it has to be established that from the very beginning the accused was not having any intention at all to marry the prosecutrix and that the offer of marriage was made as a ploy to make her surrender to him in order to satiate his carnal desires.

As per the Bench, the final report and accompanying records relied on by the prosecution were not capable of bringing out the essential requirements for the prosecution of the petitioner in connection with the commission of the offences alleged against him. Thus, allowing the Petition, the Bench quashed the proceedings against the petitioner.

Cause Title: Pradeep v. The Station House Officer (Neutral Citation: 2025:KER:87073)

Appearance

Petitioner: Advocate B. Mohanlal

Respondent: Advocate Ajith Krishnan, Public Prosecutor Seena.C

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