The Kerala High Court has quashed criminal proceedings against a man accused of raping a married woman on the promise of marriage.

The Bench of Justice Kauser Edappagath observed that the two incidents of a sexual act between the Petitioner-Accused and the 2nd Respondent were consensual in nature and thus observed –

"It is settled that, if a man retracts his promise to marry a woman, consensual sex they had would not constitute an offence under Section 376 of IPC unless it is established that consent for such sexual act was obtained by him, by giving false promise of marriage with no intention of being adhered to and that promise made was false to his knowledge."

It was the case of the Prosecution that she consented to sex persuaded by the promise of marriage given by the Petitioner.

The Petitioner was the sole accused while the 2nd Respondent was the victim. The offences alleged against the Petitioner were under Sections 376, 417 and 493 IPC.

The Prosecution had alleged that the Petitioner after giving a false promise of marriage sexually assaulted the victim on several occasions in Australia.

The Petitioner submitted before the Court that even if the entire allegations in the First Information Statement are taken at their face value, no offence under Sections 376, 417 and 493 of IPC had been made out.

The Court while concurring with the contention of the Petitioner held, "I went through the First Information Statement. There is absolutely nothing therein to attract the basic ingredients of Sections 376, 417 and 493 of IPC."

Further, the Bench noted upon reading the FIS that both the Petitioner and the victim are natives of India and they went to Australia. They met through Facebook at Australia. The said relationship developed into a love affair and they decided to marry also. But the marriage did not take place. In the meanwhile, on two occasions they had consensual sexual intercourse.

The 2nd Respondent informed the Court that she consented to sex on the promise given by the petitioner that he would marry her.

Furthermore, the Court went on to note that the 2nd Respondent was a married woman whose divorce proceedings were underway.

In light of such circumstances, the Court held, "Two incidents of sexual act between the petitioner and the 2nd respondent are mentioned in the F.I.S. Though in the F.I.S. it is stated that the petitioner forced her to have sexual intercourse with him, on the entire reading of the F.I.S., it is evident that the sexual intercourse was consensual in nature. As stated already, her case is that she consented for sex persuaded by the promise of marriage given by the petitioner."

The Court placed reliance on Ranjith Vs. State of Kerala, 2022(1) KHC 195 and XXX Vs. State of Kerala [2022 KHC 296], and observed, "Hence, I am of the view that the basic ingredients of Section 376 of IPC are not attracted. There is also nothing on record to attract the ingredients of Sections 417 and 493 of the IPC. There are no ingredients to attract the offence of cheating. There is no case for the 2nd respondent that the sex they had was after inducing a belief of lawful marriage."

Thus, the Court quashed all the criminal proceedings instituted against the Petitioner and allowed his Petition.

Cause Title – Tino Thankachan v. State of Kerala & Ors. [Neutral Citation Number: 2022/KER/65704]

Click here to read/download the Order