Rape On False Marriage Promise - Allegation Not Sustainable If Woman Continued Relationship Even After Knowing About Man's Marriage: Kerala High Court

The Kerala High Court on Thursday reiterated that if a man retracts his promise to marry a woman, the consensual sex they have had will not constitute rape unless it is established that the consent was obtained by him by giving false promise of marriage with no intention of adhering to it, and that promise made was false to his knowledge.

Quashing a rape case against a 33-year-old man, Justice Kauser Edappagath said the relationship between the accused and the complainant appears to have been purely consensual in nature. There is no allegation that when he promised to marry her, it was done in bad faith or with the intention to deceive her, said the court

"The admitted fact that the 4th respondent [complainant] 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," said Justice Edappagath.

The court added, "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. Therefore, even if the facts set out in the FIS [First Information Statement] are accepted in totality, no offence u/s 375 of IPC has been made out."

The observations were made by the court in its decision on the accused's petition seeking quashing of the FIR registered by the police in 2019. The FIR was registered under Sections 406, 420 and 376 of IPC at the Peramangalam Police Station

The woman in the FIR alleged that between 2010 and March 2019, the accused, on the false pretext of marriage, had sexual intercourse with her at several places in India and abroad. She also accused the man of inducing her to pay him Rs 15 Lakh and some gold and then committing cheating and criminal breach of trust by not returning them to her. 

According to the woman, when she came to know in 2013-14 that the accused was already married, he told her that he was living separately "for the last more than four months and was moving for divorce".

On behalf of the accused, it was contended by Senior Advocate P. Vijaya Bhanu, and Advocates Lal K. Joseph, A.A. Ziyad Rahman, Suresh Sukumar, and V.S. Shiraz Bava, that the criminal proceedings had been initiated against him on false and malicious basis with an ulterior motive. It was averred that the allegations levelled against the petitioner did not prima facie constitute any offence against the petitioner. 

The respondents represented by Government Pleader T.V. Neema, Senior Advocate S. Sreekumar, and Advocates M.B. Shyni and Deepak Raj, contended that the the woman's statement clearly disclosed serious allegations of sexual assault, and in such a scenario, it would be impermissible to quash the proceedings under Section 482 Cr.P.C.

The Public Prosecutor also submitted that when the ingredients of the offences alleged are attracted and when a prima facie case is made out, the jurisdiction under Section 482 could not be invoked.

The court said the crucial issue to be considered by it was whether the allegations indicate that the accused had indeed induced the victim into a sexual relationship on a false promise of marriage.

After perusing the victim's First Information Statement and also her Section 161 and Section 164 CrPC statements, the court said, "the allegation of sexual intercourse allegedly had between the petitioner and the 4th respondent is so vague".

The Court added that although the woman had stated that the petitioner sexually assaulted her at his house in Abu Dhabi, at Radha Park hotel in Chennai and at his residence in Chennai, the dates and time of such incidents and other details of those alleged sexual acts had not been provided.

Referring to the investigation, the court said the woman "upon interrogation" could not identify the hotel Radha Park or the room to support her version.

"In the report filed by the investigating officer before this court on 18th November 2020, in paragraph 6, it is stated that the investigation team went to Chennai for investigation and to prepare the mahazar of the place of occurrence at Radha Park, Chennai, along with the victim, but could not prepare it as the victim could not remember the date of occurrence, room number where the crime occurred nor could she identify the room at Radha Park," the court noted further.

The court also said that, as per police, though available particulars of the accused's stay at Radha were collected, she denied the occurrence on those dates "for other reasons".

Observing that the accused and the woman admittedly were in "consensual relationship" right from 2010 until 2019, the court said she became aware of the petitioner's marriage in 2013-14 but "still, she continued the relationship and had sexual intercourse with him".

The court also took note of the fact that the parents of the accused had met with the parents of the woman to discuss a marriage proposal. However, the court added, she "withdrew" from the marriage after becoming aware of some other relationships of the petitioner with other women.

It further said the woman's statements "would not reveal" that the accused made any promise "with the sole intention to seduce her to indulge in sexual acts".

"...It is apparent that the petitioner had no mala fide intention or clandestine motives to conduct the alleged rape under the pretext of marriage. Further, even as per the allegations, it is evident that the marriage could not be materialised as the 4th respondent withdrew from the marriage, doubting the petitioner's morality and on account of other unforeseen circumstances beyond the control of the petitioner", the court said.

Referring to a Facebook post where the woman had raised allegations against the accused, the court said, "A perusal of the same would show that there is no allegation of any sexual assault or rape against the petitioner".

Concluding that it is impossible to find the essential ingredients of an offence under Section 376 IPC in the case, the court said the relationship appears to have been purely consensual in nature.

"The relationship, as noted above, was in existence prior to the marriage of the petitioner and continued to subsist thereafter and even after the petitioner obtained the divorce," it said.

The court termed the allegations of cheating and criminal breach of trust as vague, and ruled that offences under Sections 406 and 420 of IPC are not attracted.

"The only allegation in the FIS is that the petitioner has obtained a total sum of Rs 15,00,000/- and five sovereigns of gold ornaments giving a false promise of marriage. There is no allegation that there was an intention to deceive on the part of the petitioner at the time of handing over the money and gold ornaments," it said.

Consequently, the criminal proceedings against the petitioner accused were quashed by the Court.

Case Title: Sreekanth Sasidharan v. State of Kerala & Ors. 

Citation: 2022 LiveLaw (Ker) 514

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