Date of judgement:
29-3-2022
Bench:
Justice Kauser Edappagath
Parties:
Petitioner – X
Respondents – State of Kerala
SUBJECT
An appeal was filed by the petitioner to quash all the proceedings that had been initiated against him on the ground that the evidence did not constitute a case against him.
OVERVIEW
- The petitioner was accused of committing offenses under Sections 376(1) and 376(2)(n) of the Penal Code, 1860.
- The petitioner and the victim studied together and fell in love. However, due to certain reasons, they could not be married and the victim married someone else.
- Subsequently, the alleged sexual acts occured during the subsistence of the marriage.
- The prosecution contended that the petitioner had made a false promise of marriage to the victim and had subsequently assaulted her sexually on several occasions.
- The petitioner, on the other hand, contended that the FIS as well as other evidences do not constitute an offense against the accused
RELEVANT PROVISIONS
Indian Contract Act
- Section 23: what consideration and objects are lawful, and what not.
ISSUES RAISED
- Whether the offense of rape was made out on the basis of the FIS and other evidence on record?
ANALYSIS
- The Court noted that the ingredients of the aforementioned Sections were not attracted.
- The Court, while relying on the case of Ranjith v. State of Kerala, [2022 (1) KLT 19], noted that where promise of marriage is retracted by a man, consensual sex does not constitute an offense of rape under Section 376 of IPC, unless it is established that the consent was given on the basis of the promise of knowledge and the maker of the promise had no intention to adhere to the promise and it was false to his knowledge.
- The Court observed that the women had consensual sex despite knowing that she could not be lawfully married to the accused.
- The promise was not legally enforceable and was an illegal promise.
- In the absence of any mala fide intention of clandestine motives, the accused cannot be held guilty.
CONCLUSION
The Court thus held that no offense of rape was made out and quashed all the proceedings against the accused. Certainly, if the promise is illegal and not enforceable, then such a promise cannot be relied upon to contend that consent was obtained by making a false promise.
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