- In the case of X vs State of Kerala, the Hon’ble Kerala HC has observed that a promise of marriage given to a woman who is already married is not legally enforceable by law and thus, cannot be a good ground for the prosecution to argue that the consent of the woman had been obtained due to a misconception of fact.
- The prosecution in the case had alleged that the petitioner in the case had sexually assaulted the victim (2nd respondent) several times in December, 2020 after giving her a false promise of marriage. The petitioner was thus charged with section 376(1) and 376(2)(n) of IPC.
- The Counsel for the petitioner, however, argued that even if the allegations in the First Information Statement (FIS) and the statements of the victim recorded under section 164 CrPC are taken at their face value, the same do not attract the basic ingredients under section 376 IPC.
- The Court observed that a reading of the FIS as well as the statements recorded under section 164 CrPC would show that the accused and the victim were in a relationship. But due to reasons beyond their control, they were unable to marry. Later the victim married another person but the relations between the two parties continued. A reading of the statements of the victim show that she got married on 5-7-2012 and in the year 2016 she again met the petitioner and they resumed their relationship.
- It was specifically stated that the petitioner went to the victim’s house on 16-12-2020 and told her that he loves her, and they engaged in sex.
- The victim had not stated that the petitioner had sex with her forcibly, on the other hand, she said that she consented for sex on a promise of marriage made to her by the petitioner.
- Referring to the decision in Ranjith vs State of Kerala (2022) the Court observed that it is a well settled law that if a man retracts his promise to marry a woman, consensual sex that they had would not constitute an offence of rape under section 376 IPC, unless it is shown that the promise to marry was false and the accused had no intention to adhere to it.
- In the case of Anilkumar vs State of Kerala (2021) the Kerala HC had recently held that a promise alleged to have been made by an accused to a married woman that he would marry her is a promise which is not enforceable in law as it is against public policy, in view of the mandatory provision contained in section 23 of the Indian Contract Act. An unenforceable and illegal promise cannot be the basis for the prosecution to argue that the consent of the woman was obtained on the basis of misconception of fact.
- The Court also referred to the decision of the Apex Court in the cases of Deepak Gulati vs State of Haryana (2013) SCC and Dhruvaram Murlidhar Sonar vs State of Maharashtra AIR 2019 SC wherein the Apex Court had drawn a distinction between a mere breach of promise and not fulfilling a false promise, and observed that if the accused had not made the promise with the sole intention to seduce the victim to gratify his lust, such an act would not amount to rape and that if the accused had a malafide intent or clandestine motives, it would be a clear act of rape.
- Thus, while quashing the proceedings against the petitioner, the Court observed that the sex between the petitioner and the victim was purely consensual in nature, and that no question of promise of marriage arose as the victim is a married woman and she knew that a legal marriage with the petitioner was not possible under law. Thus, no case under Section 376 was made out.
"Loved reading this piece by Shweta?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"
