Accused acquitted as sex was consensual
In a criminal case, a person accused of rape for having sex with a married woman who happened to be his former lover for giving false promise to marry, has been acquitted by the High Court of Kerala (HC).
Promise of marriage untenable if the lady is married
The HC, in its judgement in the case in XXX v State of Kerala and Another (2022 (1) KLD 780), categorically stated that a married woman, who clearly knows that the person who had sex with him cannot legally marry her when her marriage with another person subsists, cannot accuse the charge of rape against the man for giving false promise to marry.
The court found that the accused had sexual intercourse with the married woman a few times, but the court considered it as purely consensual in nature. The reason for such a conclusion is that the accused cannot make a false promise of marriage as she is an already a married woman and therefore another marriage with her is impermissible in law. When the sexual intercourse of the man with the married woman was purely consensual in nature and the consent given by her was not based on any misconception of fact, it cannot attract the offence of rape under Section 376 of the Indian Penal code (IPC).
Previous judgements in this regard
In Anil Kumar v State of Kerala (2021 (2) KLT 83), the HC held that if a person makes a promise of marriage to a married woman such a promise is not enforceable in law under Section 23 of the Indian Contract Act. Therefore, such an illegal promise cannot be used as a basis for prosecuting the person on charges of obtaining sex on the basis of the misconception of fact under Section 376 Explanation 2 of the IPC.
In Babu v State of Kerala and Another (2022 (2) KLD 126) also, the HC held that the accusation of a married and separated woman (but not divorced ) that she was raped under false promise to marry, has no legal effect at all. When the sex was consensual in nature, the alleged offence obtaining sex under false promise does not get attracted.
A recent SC judgement
In a recent judgement on 12th August 2022 in Shambhu Kharwar v State of UP and Another [ 2022(2) KLD 462 SC], the Supreme Court (SC) quashed a FIR when the victim, a married woman, had consensual sexual relationship with the accused and she filed a case of rape on the allegation that he made false promise to the victim to marry and induced her to sexual relationship. The lady had sexual relationship with the accused prior to her marriage to another person, during the subsistence of marriage and even after that marriage as well.
The SC added that quashing of FIR should be done with extreme caution but the court must not hesitate to exercise the power of quashing it when the FIR does not disclose the commission of a cognisable offence as in the above case.
