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2022 KHC 296
Kerala High Court
Dr. Kauser Edappagath, J.
XXX v. State of Kerala and Another
Parallel citation(s) : 2022 KHC 296 : 2022 (3) KHC SN 13 : 2022 (1) KLD 780
: 2022 KHC OnLine 296
CaseNo : Crl. M. C. No. 4933 of 2021
Date : 29/03/2022
Penal Code, 1860 -- S.376 -- Victim who is a married woman voluntarily
having sex with her former lover knowing well that she cannot enter into
a lawful marriage -- Held, does not attract the offence of rape -- When
sex between the accused and the victim was purely consensual in nature
and when consent was not given on the basis of any misconception, it
cannot attract an offence under S.376 IPC
Held:
As stated already, it is a case where the victim who is a married woman
voluntarily had sex with her former lover. She knew pretty well that she cannot
enter into a lawful marriage with the petitioner. Recently, this Court in
Anilkumar v. State of Kerala has held that the promise alleged to have been
made by the accused to a married woman that he would marry her is a
promise which is not enforceable in law as it is against public policy in view of
the mandatory provisions contained in S.23 of the Indian Contract Act and
such an unenforceable and illegal promise cannot be the basis for the
prosecution to contend that, the consent of the woman, who had sexual
relationship with the accused, was obtained on the basis of misconception of
fact as understood in Explanation 2 of S.376 of the IPC and S.90 of the IPC.
The Apex Court in Deepak Gulati v. State of Haryana and in Dhruvaram
Murlidhar Sonar (Dr.) v. State of Maharashtra, drawing distinction between
rape and consensual sex observed that the Court must very carefully examine
whether the accused had actually wanted to marry the victim or had mala fide
motives and had made a false promise to this effect only to satisfy his lust. In
drawing distinction between mere breach of a promise and not fulfilling a false
promise, it was further observed that, if the accused has not made the promise
with the sole intention to seduce the prosecutrix to indulge in sexual acts, such
an act would not amount to rape and that if the accused had any mala fide
intention or had clandestine motives, it is a clear case of rape.
Important Para(s):9, 10, 11
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Penal Code, 1860 -- S.376 -- If a man retracts his promise to marry a
woman, consensual sex they had would not constitute an offence of rape
under S.376 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 being adhered to that promise and that promise made was
false to his knowledge
Important Para(s):8
Referred: Anilkumar v. State of Kerala, 2021 (1) KHC 435; Deepak Gulati v.
State of Haryana, 2013 KHC 4423; Dhruvaram Murlidhar Sonar (Dr.) v. State
of Maharashtra, 2019 (1) KHC 403; Ranjith v. State of Kerala, 2022 (1) KHC
195; Referred to
Advocates:
Nirmal V. Nair; M. Aneesh; Ajai Babu; For Petitioner
Sangeetha Raj; For Respondents
ORDER
1. This Crl.M.C. has been filed to quash all further proceedings in
S.C.No.356/2021 on the file of the Additional Sessions Court - ll (Special),
Kottayam.
2. The petitioner is the sole accused. He faces trial for the offences
punishable under S.376(1) and S.376(2)(n) of the IPC.
3. The prosecution case in short is that the petitioner after giving a false
promise of marriage sexually assaulted the victim / the 2nd respondent on
several occasions from 16/12/2020 to 29/12/2020.
4. I have heard Sri. Nirmal V. Nair, the learned counsel for the petitioner and
Sri. Sangeetha Raj, the learned Public Prosecutor.
5. The learned counsel for the petitioner submitted that, even if the allegations
in the First Information Statement together with all the materials collected
during the investigation are taken at its face value they do not constitute the
offences alleged against the petitioner.
6. I have gone through the FIS as well as the statement given by the victim
under S.164 of the Cr.P.C. There is absolutely nothing to attract the basic
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ingredients of S.376(1) or 376(2)(n) of the IPC.
7. A reading of the FIS and statement under S.164 of the Cr.P.C. would show
that the petitioner and the victim studied together and they were in love. In
fact, they had decided to marry. But due to some reasons beyond their control
they could not marry. Later on, the victim married another person and the
alleged sexual acts with the petitioner were taken place during the subsistence
of the marriage of the victim with the said person. A reading of both the
statements of the victim would show that she got married on 05/07/2012 and in
the year 2016 she again met the petitioner. Thereafter, they started their
relationship again. It is specifically stated in the statement given by the
petitioner under S.164 of the Cr.P.C. that on 16/12/2020 the petitioner came to
her house and told her that he still loves her and thereafter they engaged in
sex. It is further stated that thereafter on five to six occasions they had sex
after giving promise that the petitioner would marry her.
8. There is no case for the 2nd respondent that, the sex they had, was forcible
one. But, according to her, she consented for sex persuaded by the promise of
marriage given by the petitioner. It is settled that, if a man retracts his promise
to marry a woman, consensual sex they had would not constitute an offence of
rape under S.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 being adhered to and that promise made was false to his
knowledge, (see Ranjith v. State of Kerala (2022 (1) KHC 195 : 2022 (1) KLT
19 : 2021 KHC OnLine 862 : 2022 (1) KLJ 316)).
9. As stated already, it is a case where the victim who is a married woman
voluntarily had sex with her former lover. She knew pretty well that she cannot
enter into a lawful marriage with the petitioner. Recently, this Court in
Anilkumar v. State of Kerala (2021 (1) KHC 435 : 2020 KHC OnLine 904 :
2021 (1) KLD 171 : 2021 (2) KLT 83) has held that the promise alleged to
have been made by the accused to a married woman that he would marry her
is a promise which is not enforceable in law as it is against public policy in
view of the mandatory provisions contained in S.23 of the Indian Contract Act
and such an unenforceable and illegal promise cannot be the basis for the
prosecution to contend that, the consent of the woman, who had sexual
relationship with the accused, was obtained on the basis of misconception of
fact as understood in Explanation 2 of S.376 of the IPC and S.90 of the IPC.
10. The Apex Court in Deepak Gulati v. State of Haryana (2013 KHC 4423 :
(2013) 7 SCC 675 : 2013 (3) KHC SN 9 : 2013 (2) KLD 240 : 2013 (2) KLT
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762 : 2013 (2) KLJ 810 : 2013 (7) SCALE 383 : AIR 2013 SC 2071 : 2013
CriLJ 2990 : (2013) 3 SCC (Cri) 660 : 2013 (127) AIC 122 : 2013 (3) CTC 567)
and in Dhruvaram Murlidhar Sonar (Dr.) v. State of Maharashtra (2019 (1)
KHC 403 : AIR 2019 SC 327 : 2019 (1) KLD 242 : 2019 (1) SCALE 64 : 2019
CriLJ 1169 : (2019) 18 SCC 191), drawing distinction between rape and
consensual sex observed that the Court must very carefully examine whether
the accused had actually wanted to marry the victim or had mala fide motives
and had made a false promise to this effect only to satisfy his lust. In drawing
distinction between mere breach of a promise and not fulfilling a false promise,
it was further observed that, if the accused has not made the promise with the
sole intention to seduce the prosecutrix to indulge in sexual acts, such an act
would not amount to rape and that if the accused had any mala fide intention
or had clandestine motives, it is a clear case of rape.
11. As stated already, the sequence of events mentioned above would go to
show that the sex the petitioner and the victim had was purely consensual in
nature. There is nothing on record to show that the petitioner had made a false
promise only to satisfy his lust. No question of promise to marry arises
inasmuch as the 2nd respondent is a married woman and she knew that a
legal marriage with the petitioner was not possible under law. The offence of
rape cannot be constituted on the basis of the allegations in the FIS and the
statement under S.164 of the Cr.P.C. as it is apparent that the consent was
not given by her on the basis of any misconception.
In these circumstances, I am of the view that no purpose will be served in
proceeding with the matter further. All further proceedings in S.C.No.356/2021
on the file of the Additional Sessions Court - II (Special), Kottayam stand
hereby quashed. Crl.M.C. is, accordingly, allowed.
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