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Synopsis

The Kerala High Court has ruled that a continuous consensual relationship between a married woman and a man cannot be termed as rape. The court quashed the ongoing proceedings against the accused, citing abuse of the court’s process.

The case pertained to the accused, who had been booked under Sections 376 (rape) and 506(i) (criminal intimidation) of the Indian Penal Code (IPC). The complaint was lodged by a married woman, claiming that the accused had subjected her to sexual relations by threatening harm to her husband and children. It was alleged that the accused took the complainant to various lodges in Thiruvananthapuram, Kannur, and Mangalapuram, where he engaged in sexual intercourse with her putting her under the fear of injury to herself and her family and on the pretext of a promise to marry.

A Single judge bench, presided over by Justice G. Girish, observed : “Had it been a single incident where the offender had managed to conquer the victim on knife point to submit herself to his carnal desires by instilling fear of causing damage to the life of her husband and children, the contention of the victim would have been accepted. But, when the case relates to the continued amorous relationship between the victim and the offender for several months at various places where they travelled together, the contentions of the victim about her consent procured under fear of injury, cannot hold any water.”

The accused/petitioner, represented by Advocate Kodoth Sreedharan, contended that the prosecution’s claims were baseless. It was argued that the facts clearly indicated a prolonged consensual extramarital relationship, which the complainant now sought to depict as rape. The accused emphasised that the woman, despite being married and living with her husband and children, willingly accompanied the petitioner to various locations and stayed with him in lodges over an extended period. The petitioner further argued that a relationship spanning months, involving consensual sexual relations at multiple locations, cannot retrospectively be termed as coerced or forced under the threat of harm.

On the other hand, Public Prosecutor Prasanth M.P., maintained that the complainant's consent was vitiated by fear of injury, as the accused allegedly threatened harm to her family. The complainant stated that her actions were coerced to safeguard her husband and children’s lives.

The court rejected the complainant’s justification for the extended relationship, stating that the explanation appeared implausible. The court stated that the “excuse offered by the defacto complainant for her promiscuous relationship with the petitioner, cannot be accepted without a pinch of salt.” The court remarked that a single instance of coercion might have been acceptable under Section 90 IPC, which deals with situations where consent is not valid, but in a case involving a prolonged sexual relationship, such claims cannot hold weight.

Further, the court pointed out that the complainant’s status as a married woman with children undermined the validity of the claim that sexual relations were based on a promise of marriage. “Defacto complainant is a housewife having husband and two children, and her marriage was subsisting during the occasions when she indulged extramarital relationship with the petitioner,” the court said, rejecting the above contention.

Terming the prosecution an “abuse of process of court,” the court held that the allegations lacked merit. It concluded that consensual extramarital affairs could not be painted as rape to suit later circumstances.

Exercising its inherent powers under Section 482 of the Code of Criminal Procedure (Cr.P.C.), the court quashed the proceedings against the accused.

 

Cause Title: Pushpangadan v State of Kerala [CRL.MC NO. 4265 OF 2020]