“Subsequent refusal to marry or failure to lead relationship into marriage, not enough to constitute rape”: Kerala High Court

While granting bail to a Central Government Counsel in a sexual assault case, the Kerala High Court ruled that a subsequent refusal to marry or failure to lead the relationship into marriage is not enough to constitute rape, even if the partners had physical relations.

The court was hearing a bail application of a Central Government Counsel alleged of sexually abusing his colleague, and enticing her with a false promise of marriage.

A single-judge bench of Justice Bechu Kurian Thomas observed that a sexual relationship between two willing adult partners does not constitute rape under section 376 of the IPC unless the consent for sex was obtained through a fraudulent act or misrepresentation.

Justice Thomas further observed that “Even if a sexual relationship between two willing partners does not result in marriage, it is not rape in the absence of any factor that vitiates consent for sex, and even if the partners had engaged in a physical relationship, a subsequent refusal to marry or a failure to lead the relationship into marriage are not factors sufficient to constitute rape.”

“A sexual relationship between a man and a woman is only raped if it is done against her will or without her consent, or if consent is obtained through force or fraud,” the court added.

Court further stated that the consent for sex obtained through a promise to marry will amount to rape only if the promise was made in bad faith, tainted by fraud, or was not intended to be followed at the time it was made.

Court noted that to convert a physical relationship between a man and a woman into rape due to failure to keep the promise of marriage, the woman's decision to engage in the sexual act must be based on the promise of marriage.

Court further noted that to establish a false promise, the promise maker must have had no intention of keeping his word at the time of making it, and the promise must have induced the woman to submit to the physical relationship. The physical union and the promise of marriage must be inextricably linked.

The petitioner, a Central Government Counsel was arrested last month for alleged offenses under Section 376(2) (n) and Section 313 of the Indian Penal Code (IPC).

The complainant, the petitioner's colleague claimed that they had been in a relationship for four years. When she ran into him and his fiancee at a hotel, she discovered that he was getting married to another woman. Thereafter, the complainant allegedly attempted suicide by slitting her wrist and was hospitalized.

It was further claimed that during the investigation, it was discovered that the victim was forced to have two miscarriages at the petitioner's request, and thus Section 313 IPC was also incorporated. The incident was revealed when she gave the police a statement explaining the reason for her suicide attempt.

 As a result, the petitioner was arrested. The petitioner had approached the High Court seeking regular bail in the case.

Accordingly, the Court granted bail subject to certain conditions, observing that, while the charges against him are serious, he is unlikely to flee justice because he is said to be a central government counsel.

Case Title: [NameWithheld] v. State of Kerala and Ors.