The Kerala High Court ruled that if a woman continued a relationship after learning that a guy had married, the accusation of rape based on a false vow to marry would be invalid.
The petitioner is the accused. The respondent is the victim/defacto complainant. The offences alleged against the petitioner are punishable under Sections 406, 420 and 376 of IPC. The prosecution case, in short, is that during the period between 2010 to March 2019, the petitioner, by giving a false promise of marriage to the respondent, had sexual intercourse with her in several places in India and abroad and thereby committed the offence of rape. It is further alleged that during the period of their good relationship, the petitioner dishonestly induced the respondent to deliver an amount of `15,00,000/- and five sovereigns of gold and committed the offence of cheating and criminal breach by not returning the money and gold.
Advocate Lal K.Joseph, appearing for the petitioner, submitted that the criminal proceedings in the FIR has been initiated against the petitioner falsely and maliciously with an ulterior motive and not based on real facts.
He contended that the allegations made in statement together with the materials collected during investigation, even if taken at their face value, do not prima facie constitute any offence or did not make any case against the petitioner.
Senior Advocate S. Sreekumar, appearing for the respondent submitted that the statement discloses serious allegations of sexual assault against the petitioner and that it is impermissible to quash criminal proceedings u/s 482 of Cr.P.C when there are serious triable allegations in the complaint.
The single judge bench of Justice Kauser Edappagath observed that the legal position which can be culled out from the judicial pronouncements referred above is that if a man retracts his promise to marry a woman, consensual sex they had will not constitute an offence of rape under Section 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.
The court said that the prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that the accused had no intention to marry the prosecutrix at all from the very inception.
The court noted that the statements of the respondent recorded under Section 161 of Cr.P.C and under Section 164 of Cr.P.C would show that the allegation of sexual intercourse allegedly had between the petitioner and the respondent is so vague.
It was further noted that according to the respondent, the petitioner committed sexual assault on her at his house in Abu Dhabi, at Radha Park hotel in Chennai and at his residence in Chennai. There is no specific mention of the date, time, and other details of those alleged sexual acts under the pretext of marriage. The materials on record would show that the respondent, upon interrogation, could not identify the hotel Radha Park or the room to support her version.
The bench observed that the respondent had admitted that in the year 2013-14, she came to know that the petitioner was married. Still, she continued the relationship and had sexual intercourse with him.
The court said that it is apparent that the petitioner had no mala fide intention or clandestine motives to conduct the alleged rape under the pretext of marriage.
“Against this backdrop and taking note of the allegations in the FIS as they stand, it is impossible to find the essential ingredients of an offence u/s 376 of IPC. The relationship between the petitioner and the 4th respondent appears to be purely consensual in nature. The relationship, as noted above, was in existence prior to the marriage of the petitioner and continued to subsist thereafter and even after the petitioner obtained the divorce” the court added.
The bench stated that the admitted fact that the respondent is having a relationship with the petitioner since 2010 and she continued the relationship knowing about his marriage from 2013 onwards would nullify the story regarding the sexual intercourse on the false pretext of marrying her. The alleged sex can only be termed as one on account of love and passion for the petitioner and not on account of misrepresentation made to her by the petitioner. Therefore, even if the facts set out in the FIS are accepted in totality, no offence u/s 375 of IPC has been made out.
The court viewed that no useful purpose will be served by allowing the criminal prosecution against the petitioner to continue. Hence it quashed all further proceedings in FIR.
Case title: Sreekanth Sasidharan v/s State of Kerala
Citation: CRL.MC NO. 9201 OF 2019