Man Starting New Marriage For 'Greener Pasture' Won't Turn Prior Consensual Relationship Into 'Rape': Kerala High Court

The Kerala High Court, in a recent judgment, held that if a man starts a new marriage in search of 'greener pasture', the same by itself, would not turn his prior, consensual sexual relationships into 'rape' as per the Indian Penal Code.Justice G. Girish clarified that in such cases, consent for earlier sexual relationships cannot be said to have been obtained on false promise to marriage.He observed,“The fact that the accused went in search of greener pasture for giving vent to his promiscuous sexual urge, and started a new relationship in the nature of marriage with another lady, by itself will not bring his prior relationship with the victim with in the meaning of rape. Hence the proceedings initiated against the accused in connection with the commission of rape, is primafacie unsustainable.”The petitioner before the Court was accused of the offences under Sections 493 [Cohabitation caused by a man deceitfully inducing a belief of lawful marriage], 496 [Marriage ceremony fraudulently gone through without lawful marriage] and 376 [Punishment for rape] of the Indian Penal Code. He had challenged the criminal proceedings before the High Court.The prosecution case was that in the year 2009, the accused befriended the de facto complainant, who was a woman having two children. He then indulged in sexual relationship with her in her place of business after making her believe that he would marry her. In 2013, after her husband died, the accused resided with the de facto complainant and her children, and maintained the relationship with her.Subsequently, he got employment in Wayanad but he still used to visit the de facto complainant and maintained their sexual relations. When the de facto complainant insisted for marriage, the accused tied a knot in her gold chain in front of a candle and lamp and made her believe that he had married her.While their relationship was continuing, the de facto complainant questioned the accused when she came to know that he married another woman in 2014. Then, the accused told her that he considered the de facto complainant to be his only wife. Later, in 2017, the accused decided to discontinue his relationship with the de facto complainant and refused to accept her.Considering the offence under Section 376 IPC, the Court observed that the facts of the case make it clear that the relationship was consensual. The contention that consent was given based on a false promise to marry was not accepted by the Court since it found that the relationship started while the de facto complainant was lawfully married.Relying on the Apex Court decisions in Uday v. State of Karnataka (2003), Deepak Gulati v. State of Haryana (2013), Dhruvaram Murlidhar Sonar v. State of Maharashtra, and Naim Ahamed v. State, the Court came to the conclusion that the consent given by the de facto complainant for sexual intercourse with a person she is deeply in love with on a promise of marriage at a later time, cannot be termed as a misconception of fact.It further observed: “For bringing home the offence of rape, it has to be established that from the very beginning the accused was not having any intention at all to marry the prosecutrix and that the offer of marriage was made as a ploy to make her surrender to him in order to satiate his carnal desires.”The Court found that in the present case, there was no misconception of facts to vitiate consent and the offence of rape is not made out.With respect to the offences under Sections 493 and 496 IPC, the Court noted that since these were offences related to marriage, as per Section 198 of the Code of Criminal Procedure, the cognizance can only be taken on the basis of a complaint made by the person aggrieved.It observed: “As regards the offences under Sections 493 and 496 I.P.C incorporated in the final report, it has to be stated that a prosecution for the commission of the aforesaid offences is, prima facie, not maintainable since under Section 198 Cr.P.C, the court concerned is proscribed from taking cognizance of the said offences except upon a complaint made by a person aggrieved by the offence. Therefore, the petitioner cannot be compelled to face trial for the offences under Sections 493 and 496 I.P.C in a final report filed by the police under Section 173(2) Cr.P.C.”It, thus, allowed the petition and quashed the criminal proceedings against the accused.Case No: Crl.M.C. No. 5348 of 2019Case Title: Pradeep v. Station House Officer and Anr. Citation: 2025 LiveLaw (Ker) 745Counsel for the petitioner: B. MohanlalCounsel for the respondents: Ajith Krishnan – R2, Seena C. – Public ProsecutorClick to Read/Download Judgment

Man Starting New Marriage For 'Greener Pasture' Won't Turn Prior Consensual Relationship Into 'Rape': Kerala High Court

K. Salma Jennath

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