Justice Raja Vijayaraghavan through his judgment observed that, "The question to be considered in such cases 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".
"If the materials, prima facie, suggest that the prosecutrix agreed to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do, such cases will not fall within the ambit of rape and will have to be considered differently", the Court observed. Reliance was placed on the SC precedent Dr.Dhruvaram Muralidhar Sonar v. State of Maharashtra & Ors for these observations.
The facts of the case transpired as, the informant is a married woman with a girl child residing separately from her husband due to some marital discords. The accused used to contact her and bring her food and other items. As per the informant, the accused raped her when her daughter was not around and made her pregnant. When this fact was mentioned to the petitioner, he is alleged to have assured her that he would marry the lady as and when she gets a divorce from her husband. Later when the petitioner stopped contacting the lady, she approached the Police and set the law in motion.
The Counsel for the Petitioner Advocate Biju C.Abraham had argued that there is no element of false promise and no material evidence exist there to suggest that the consent to have sexual intercourse was vitiated by a 'misconception of fact' arising out of a promise to marry.
The Court allowed anticipatory bail to the accused, observing that it was "difficult to accept at this stage that a false promise was given to engage her in a sexual relationship and that it was under such misconception of fact that she had acceded to the wishes of the petitioner".
The Court held that custodial interrogation of the accused was not necessary, and allowed pre-arrest bail on condition that he should cooperate with the investigation and shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m., for two months or till the final report is filed, whichever is earlier.
Distinction between Rape & Consensual Sex
In Dr. Dhruvaram(Supra), the Court had held,
"if the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently."
Also in another decision, Deepak Gulati v. State of Haryana, (2013)7 SCC 675, the court had explained the distinction between Rape and Consensual Sex.
"the physical relationship between the parties had clearly developed with the consent of the prosecutrix as there was neither a case of any resistance nor had she raised any complaint anywhere at any time, despite the fact that she had been living with the accused for several days and had travelled with him from one place to another. The Court further held that it is not possible to apprehend the circumstances in which a charge of deceit/rape can be levelled against the accused. ", the Court held.
Title : Tijo Varghese v State of Kerala
Case No : Bail Application No.3839/2020
Order Date : 02/07/2020