False Promise Of Marriage: Kerala High Court Refuses To Quash Rape Case, Says Accused Obtained Consent Only For Sexual Relations

The Kerala High Court recently refused to quash the criminal proceedings that had been initiated against a person for allegedly raping a woman under the false promise of marriage, on the ground that the facts prima facie established that he had never intended to marry her.

Justice K. Babu perused Section 90 of the Indian Penal Code which refers to the expression 'consent', and noted that for the purposes of Section 375, consent requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent.

The Court further noted that whether there was consent or not could only be ascertained on a careful study of all relevant circumstances.

Elucidating the difference between rape and consensual sex, the Court observed, 

"There is a clear distinction between rape and consensual sex, and the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage, a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence".

Justice Babu took note of the Apex Court decision in Pramod Suryabhan Pawar v. State of Maharashtra (2019), wherein the Court had summarized the two propositions to find whether the 'consent' was vitiated by a 'misconception of fact' arising out of a promise to marry, namely, (1) The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. (2) The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.  

As per the facts of the case, the petitioner and the victim had been colleagues when he told her that he liked her and offered to marry her. When the petitioner repeatedly offered to marry her, the victim agreed to marry him. It is noted that both of them travelled to many places together. It has been alleged that the petitioner sexually ill-treated the victim, and appropriated her gold ornaments. It has been alleged that the petitioner had raped the victim, and also had physical relations with her on the false promise of marriage. However, he later avoided the victim and refused to marry her. 

The counsels appearing on behalf of the petitioner contended that the prosecution had failed to prima facie establish a false promise of marriage in this case. It was argued that at most, the facts only revealed a 'breach of promise' which the petitioner had made in good faith, but had not subsequently fulfilled. 

This was however disputed by the counsels for the respondents who said the acts of the accused fall under the definition of 'rape' since the consent of the victim had been obtained under a misconception of facts defined under Section 90 of I.P.C. 

The Court thus ascertained that the facts prima facie establish that the petitioner had never intended to marry the victim and procured her consent only for having sexual relations with her, thereby making it fall under the definition of 'rape'. 

It observed that the power of quashing criminal proceedings ought to be exercised sparingly, and with circumspection, and that too in the rarest of rare cases. It added that the Court could not enquire as to the reliability or genuineness or otherwise of the allegations made in the FIR, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. 

"The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice," said the court, adding that even in exceptional cases, the High Court can only look into those documents which are unimpeachable and can be legally translated into relevant evidence. 

The court said the criminal proceedings in the present case not liable to be quashed, and accordingly, dismissed the petition. 

The petitioner was represented by Senior Advocate K.P. Satheeshan, and Advocates S.K. Adhithyan and Bhavya Binu. Public Prosecutor G. Sudheer, and Advocates Geetha Job Ozhukayil, Tanya Tom, and Tom Jose appeared on behalf of the respondents. 

Citation: 2023 LiveLaw (Ker) 145 

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