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Synopsis

The Kerala High Court refused to quash a rape case against an accused who  allegedly made a false promise of marriage to the victim (prosecutrix) to establish a sexual relationship with her and later retracted from marrying her saying that “sex is not a promise”.

A Single judge bench, led by, Justice A. Badharudeen, observed : “when, prima facie, materials would show that the prosecutrix was subjected to sexual intercourse on the promise of marriage without any bona fides and under a misconception of fact, then the consent is vitiated.”

According to the prosecution, the accused, a member of the police department and the brother of a friend of the complainant, made her acquaintance in 2019 during the time her marriage was fixed with another man. Due to the COVID-19 pandemic, her marriage was delayed. During this period, the accused offered to marry the complainant and, based on this promise, established physical relationship with her on multiple occasions.

The accused further engaged with the complainant's family, where marriage discussions occurred between their respective fathers. However, the accused later retracted his promise to marry. Following this, the victim filed a complaint on before the Police on January 9, 2022. The complaint also alleged that the accused, upon knowing about the complaint made against him, visited her workplace, a hospital, where she was a Nurse, threatening to publish her nude photos if she did not withdraw the complaint.

Seeking to quash the proceedings against him, the accused argued that the relationship was consensual and that no offence of rape was made out. The counsel for the accused, Advocate K. Siju, relying on precedent cases, including Deepak Gulati v. State of Haryana (2013) and Shambhu Kharwar v. State of Uttar Pradesh (2022), submitted that a consensual relationship, even on a promise of marriage, would not amount to rape unless the promise was false at the inception.

Opposing the plea by the accused, the Public Prosecutor argued that the case should go for trial as the accused deliberately misused the promise of marriage to obtain consent for sexual intercourse, which vitiates consent under Section 90 of the Indian Penal Code (IPC). It was also argued that the threat to publish intimate photographs constituted further intimidation and harassment.

The court noted that consent obtained through a promise to marry, when the promisor lacks genuine intent to fulfill the promise, is invalid under Section 90 of the IPC. The court stated : “the legal position is emphatically clear that a promise to marry, without having any intention or any inclination to marry the victim, will vitiate the consent in terms of Section 90 of IPC, concomitantly if consent has been given under fear of injury or misconception of fact, such consent obtained, cannot be construed to be valid consent. So also, when the prosecutrix had sexual intercourse with the accused on the bona fide representation made by the accused that he would marry her, the same was a false promise at the instance of the accused and the same is hit by Section 90.”

“Explanation 2 to Section 375 of IPC provides that consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act,” the court further clarified.

The court ruled that the facts of the present case show that the consent of the victim was vitiated and dismissed the petition stating that “quashment prayer is liable to fail.”

 

Cause Title: Appu v State of Kerala [CRL.MC NO. 9854 OF 2024]