The Kerala High Court reiterated that the promise alleged to have been made by the accused to a married woman that he could marry her is a promise which is not enforceable in law.
The prosecution case in short is that, the petitioner after giving false promise of marriage sexually assaulted the victim on several occasions at Australia and thereby committed the offence.
Advocate Mahesh V. Ramakrishnan, appearing for the petitioner, submitted that even if the entire allegations in the First Information Statement are taken at its face value, no offence under Sections 376, 417 and 493 of IPC had been made out.
The single judge bench of Justice Kauser Edappagath noted that both the petitioner and the victim are natives of India and they went to Australia. They met through facebook in 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.
It was further noted that her case is that she consented for sex persuaded by the promise of marriage given by the petitioner.
The bench said that 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.
The court observed that it is a case where the victim who is a married woman voluntarily had sex with her lover. She knew pretty well that she cannot enter into a lawful marriage with the petitioner, in as much as she is a married woman.
The court stated that no question of promise to marry arise, since, the victim is a married woman and she knew that legal marriage with the petitioner was not possible under the law.
The court observed that there is 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 respondent that the sex they had was after inducing a belief of lawful marriage.
The court allowed the appeal.
Case title: Tino Thankachan v/s State of Kerala
Citation: CRL.MC NO. 1819 OF 2019
Date: 22 November 2022