Consent given out of love and passion on a promise of marriage, sexual intercourse is not rape

Shanil Vs State of Kerala

Kerala HC

06/07/2020

Bail Appl. No. 3798 OF 2020

About/from the judgment:

The Court allowed pre-arrest bail to the applicant accused of raping a woman whom he allegedly met on Facebook.

Accused preferred a pre-arrest bail application for an offence punishable under Section 376(1) of the Penal Code, 1860.

Petitioner and informant were in a relationship for 1.5 years and the petitioner had promised to marry the informant.

When informant had reached Kozikhode for purchasing some clothes for their marriage, she was taken to a lodge, where both petitioner and informant stayed together and the informant was subjected to penetrative sexual abuse.

Petitioner also took some pictures of the informant and threatened with the same to obtain a sum of Rs 40,000 and gold chain.

Decision

Bench noted that according to the de facto complainant, she was in a relationship with the petitioner.

Court relied on the Supreme Court case of Dr Dhruvaram Muralidhar Sonar v. State of Maharashtra [2019 (1) KHC 403] wherein it was held that there is a distinction between rape and consensual sex.

Bench stated in the present matter that the question to be considered is:

Whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise to that effect only to satisfy his lust?

“…former is not rape but the latter will fall within the ambit of cheating and deception.”

Distinction between mere breach of a promise and not fulfilling a false promise
Further Court also observed that, if the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, then such consent cannot be said to be given under a misconception of fact.

Thus, in view of the above, Court’s opinion was that the custodial interrogation of the petitioner was not necessitous for an effective investigation.

Hence, the present application was allowed with certain conditions.

Read the Judgment

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