The Kerala High Court recently observed that an allegation of rape on false promise to marry, will not stand if the woman knew that the man was already married and still continued the sexual relationship with the accused [Sreekanth Sasidharan v State of Kerala & Anr.].
Justice Kauser Edaggapath opined that any sex had between such a couple could only be termed as one on account of love and passion, and not based on any false promise to marry.
“The admitted fact that the 4th respondent is having a relationship with the petitioner since 2010 and she continued the relationship knowing about his marriage from 2013 onwards would nullify the story regarding the sexual intercourse on the false pretext of marrying her. The alleged sex can only be termed as one on account of love and passion for the petitioner and not on account of misrepresentation made to her by the petitioner,” the order said.
Referring to a host of precedents, the Court reiterated that if a man retracts his promise to marry a woman, then consensual sex they had will not constitute an offence of rape under Section 376 of the IPC unless it is established that the consent for such sexual act was obtained by him by giving false promise of marriage with no intention of adhering to the same and that the promise made was false to his knowledge.
The Court passed the order on a plea moved by man to quash the case registered against him for the alleged commission of offences punishable under Sections 406 (criminal breach of trust), 420 (cheating and dishonestly inducing delivery of property) and 376 (rape) of Indian Penal Code.
The prosecution allegation was that over a period of nine years, the petitioner, by giving a false promise of marriage to the complainant, had sexual intercourse with her in several places in India and abroad.
It was further alleged that the petitioner dishonestly induced the complainant to deliver an amount of ₹15 lakhs and five sovereigns of gold.
Advocate Lal K Joseph, appearing for the petitioner, argued that the statement of the complainant, together with the materials collected during investigation, even if taken at their face value, do not prima facie constitute any offence or did not make any case against the petitioner.
On the other hand, the Senior Advocate S Sreekumar, appearing for the complainant, submitted that the statement discloses serious allegations of sexual assault and that it is impermissible to quash criminal proceedings under Section 482 of Code of Criminal Procedure, when there are serious triable allegations in the complaint.
Senior Public Prosecutor TV Neema also supported the argument against quashing the case.
The Court noted that the statement of the complainant disclosed that she knew the petitioner since 2010 and she came to know about the fact that the petitioner was married five to six years ago. Still, she was in a sexual relationship with him till 2019. She claimed that the petitioner had told her he was moving for divorce but she later came to know that he was in relationship with some other women as well.
From the complainant’s statement and other material on record, the Court concluded that the petitioner had no mala fide intention or clandestine motives to conduct the alleged rape under the pretext of marriage.
The fact the complainant was having a relationship with the petitioner since 2010 and she continued the relationship knowing about his marriage from 2013 onwards would nullify the story regarding the sexual intercourse on the false pretext of marrying her, the Court opined.
Therefore, it quashed the FIR registered against the petitioner.
The petitioner was represented by Senior Advocate P Vijaya Bhanu and advocates K Joseph, AA Ziyad Rahman, Suresh Sukumar, and VS Shiraz Bava.
The complaining was represented by Senior Advocate S Sreekumar, and advocates MB Shyni and Deepak Raj.