Kerala HC junks case against man facing rape charge on false promise of marriage to married woman

Therefore, the court said “it is liable to be quashed by invoking the inherent power under Section 528 of BNSS”.

Section 528 of Bhartiya Nagrik Suraksha Sanhita deals with the inherent powers of the high court.

The woman had alleged that she was raped after “consenting to sexual intercourse based on the accused’s promise to marry her.”

On her marital status, she contended that her marital relationship was “strained” as she has been living separately from her husband for the last two-and-a-half years.

Referring to certain precedents of the apex court, Justice Kumar said the absence of consent cannot be presumed in every case where the complainant alleges that she has sexual intercourse with the offender, believing his promise of marriage.

The court emphasised the statutory and social impossibility of the complainant to enter into a lawful marital relationship with the accused.

“De facto complainant was already married to another person and she is the mother of a 6 year old boy. Her marriage was still subsisting at the time when the alleged incident occurred,” the court said.

The complainant’s allegation, as a result, was stated to have not fulfilled the “misconception of fact” condition provided under Section 375 of the IPC.

Section 375 of the IPC defines rape and the circumstances under which a man is considered to have committed rape, primarily focusing on sexual intercourse with a woman without her consent.

“In other words, it can only be treated as a consensual relationship. As argued by the learned counsel for the petitioner, the prosecution could not bring out a charge against the accused under Section 376 (2)(n) IPC or under any other provision,” the court added.

The provision states whosoever “commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine”.

Background

The prosecution alleged that the man befriended the woman on a social media platform and promised to marry her in 2021. It was alleged that he invited her to a hotel and raped her. He was accused raping her on multiple occasion, thereby, attracting the offence punishable under Section 376 (2)(n) of the IPC.

The counsel for the petitioner, however, argued that even if the allegations were to be believed on face value, no offence under Section 376 (2)(n) was made against his client as at the time of the alleged incident the complainant was already married with a child.

The alleged promise of marriage could not be believed, he said, while praying for quashing the charge against the petitioner.