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Synopsis

The Kerala High Court recently quashed all the criminal proceedings pending against a man accused of having consensual sex with a married woman on the basis of false promise of marriage.

The bench of Justice Kauser Edappagath reiterated an earlier decision wherein it was held 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 judge said that in the present case, no question of promise to marry arose, since, the victim was a married woman and she knew that legal marriage with the petitioner was not possible under the law.

Therefore, court held that the basic ingredients of Section 376 of IPC were not attracted in the present case. 

The court was dealing with a plea moved by a man against whom the prosecution case was that after giving false promise of marriage, he sexually assaulted the victim on several occasions in Australia and thereby committed the offences under Sections 376 (punishment for rape), 417 (punishment for cheating), and 493 (cohabitation caused by a man deceitfully inducing a belief of lawful marriage) of the Indian Penal Code (IPC).

As per the FIR, both the petitioner and the victim were natives of India and they went to Australia where they met through Facebook. 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.

According to the woman, she consented to sex on the promise given by the petitioner that he would marry her.

However, Court found that it was an admitted fact the victim was a married woman, who was separated from her husband but divorce proceedings were going on.

Court also found that though in the F.I.S. it was stated that the petitioner forced the victim to have sexual intercourse with him, on the entire reading of the F.I.S., it was evident that the sexual intercourse was consensual in nature.

Court said that the victim's case was that she consented for sex persuaded by the promise of marriage given by the petitioner, however, 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 [Ranjith Vs. State of Kerala, 2022(1) KHC 195].

Therefore, considering the facts and circumstances of the case, court held that neither the basic ingredients of Section 376 of IPC were attracted in the present case nor the ingredients of Sections 417 and 493 of the IPC.

Accordingly, while stating that no purpose would be served in proceeding further with the matter, the court quashed all the proceedings pending against the man in the present matter. 

Case Title: Tino Thankachan v State of Kerala