Promise To Marry Made To Married Woman Not Legally Enforceable, Offence Of Rape Not Attracted: Kerala High Court

The Kerala High Court has established that the promise alleged to have been made by the accused to a married woman that he would marry her before engaging in sexual relations with her is not enforceable in law and thus it cannot be a ground for the prosecution to argue that the woman had consented due to a misconception of fact. Holding so, Justice Kauser Edappagath quashed all proceedings against the accused observing that according to the sequence of events and the survivor's statement, it appeared to be a consensual act. "No question of promise to marry arises inasmuch as the 2nd respondent is a married woman and she knew that a legal marriage with the petitioner was not possible under law. The offence of rape cannot be constituted on the basis of the allegations in the FIS and the statement under Section 164 of the Cr.P.C. as it is apparent that the consent was not given by her on the basis of any misconception."The prosecution alleged that the petitioner sexually assaulted the 2nd respondent several times in December 2020 after giving her a false promise of marriage. Thereby he was charged with Section 376 (1) and 376(2)(n) in the First Information Statement (FIS). However, Advocates Nirmal V. Nair, M. Aneesh and Ajai Babu appearing for the petitioner argued that the materials collected during the investigation or present in the FIS do not constitute the offences alleged against him. As such, the petitioner prayed that all the proceedings pending against him be quashed. The Court noted that the FIS or the statement of the survivor did not disclose anything to attract the basic ingredients of the alleged offences. According to the statement, the petitioner and the survivor had studied together and were in a relationship. Although they had decided to get married, it did not fructify due to reasons beyond their control. Later on, the survivor got married to another person. However, four years later, she met the petitioner again and they resumed their relationship. During this time, they engaged in sexual intercourse despite the subsistence of the survivor's marriage. The survivor's statement disclosed that the petitioner came to her house, confessed that he still loved her and thereby promised to marry her after which they engaged in sexual acts on five to six occasions. The Court noted that the prosecution had no case that it was a forcible act. The survivor's argument was that she consented to sex persuaded by the promise of marriage given by the petitioner. The Bench reiterated that if a man retracts his promise to marry a woman, consensual sex they had would not constitute an offence of rape under Section 376 unless it is established that the consent for such sexual act was obtained by him by giving a false promise of marriage with no intention of being adhered to and that promise made was false to his knowledge. However, in this case, a married woman voluntarily had sex with her former lover knowing pretty well that she cannot enter into a lawful marriage with the petitioner. It was recalled that promise alleged to have been made by the accused to a married woman that he would marry her is not enforceable in law as it is against public policy in view of the mandatory provisions contained in Section 23 of the Indian Contract Act and such an unenforceable and illegal promise cannot be the basis for the prosecution to contend that the consent of the woman, who had sexual relations with the accused, was obtained on the basis of a misconception of fact as understood in Explanation 2 of Section 376 of the IPC and Section 90 of the IPC. Further, the Apex Court while drawing distinction between rape and consensual sex observed that 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. In drawing a distinction between mere breach of a promise and not fulfilling a false promise, it was also observed that, 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 and that if the accused had any mala fide intention or had clandestine motives, it is a clear case of rape. The Single Bench concluded that the sequence of events shows that the sex the petitioner and the victim had was purely consensual in nature and added that there was nothing on record to show that the petitioner had made a false promise only to satisfy his lust. Finding that no purpose would be served in proceeding with the matter, all the charges pending against the petitioner were quashed and his plea was thereby allowed. Case Title: X. v. State Of Kerala & Anr. Citation: 2022 LiveLaw (Ker) 172Click Here To Read/Download The Order

Promise To Marry Made To Married Woman Not Legally Enforceable, Offence Of Rape Not Attracted: Kerala High Court

Hannah M Varghese

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