Subsequent Refusal To Marry Not Sufficient To Constitute Rape Unless Consent Was Obtained By Fraud- Kerala High Court
Justice Bechu Kurian Thomas of Kerala High Court has held that a subsequent refusal by the accused man to marry the complainant will not constitute rape unless the consent for sex with the complainant was obtained by fraud or misrepresentation.
The Court thus held –
"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. 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."
In this case, the Petitioner is a lawyer practicing in the Kerala High Court and was arrested for the offences under Section 376(2)(n) and Section 133 IPC based on the statement given by the alleged victim. The alleged victim is also an Advocate practicing in the same Court and was admitted to a hospital because she had slit her wrist. Based on her statement, the Petitioner was arrested by the Police.
It was alleged by the victim that the Petitioner had raped her at various places and promised to marry her and thereafter backed out from the promise and decided to marry another lady. Further, the Prosecution alleged that on coming to know about the proposed marriage, the victim attempted to commit suicide.
The Petitioner preferred a bail application under Section 439 CrPC before the High Court.
Senior Counsel M. Ramesh Chander appeared for the Petitioner while PP M.K. Noushad along with Counsel V. John Sebastian Ralph appeared for the victim before the High Court.
The Court observed that a subsequent refusal to marry after sex 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 further noted that 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.
Furthermore, the Bench opined, "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 Court also held that to establish a false promise, the maker of the promise should have 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 a direct nexus between the physical union and the promise of marriage [Pramod Suryabhan Pawar v. State of Maharashtra and Another [(2019) 9 SCC 608].
The Court additionally noted that the offences alleged against the Petitioner are very serious, still, the possibility of him fleeing from justice is remote especially since he is stated to be a Central Government Counsel.
"The further factors like the arguable points on the merits of the case, the absence of criminal antecedents of the petitioner, the absence of the requirement of any further recovery, and the fact that the investigation is practically completed, all lean in favour of the petitioner being released on bail," the Bench added.
Thus, the Court held that the continued detention of the Petitioner was not essential and allowed the bail application subject to certain conditions.