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Consensual sexual activity between a man and a woman after he breaks his commitment to marry her does not constitute rape under Section 376 of the Indian Penal Code unless it is proven that he got the permission for the act by making a false promise of marriage: Kerala High Court

Consensual sexual activity between a man and a woman after he breaks his commitment to marry her does not constitute rape under Section 376 of the Indian Penal Code unless it is proven that he got the permission for the act by making a false promise of marriage is upheld by the Kerala High Court in the case of X v. State of Kerala (Crl. MC No. 4933 of 2021) through Justice Dr Kauser Edappagath

FACTS OF THE CASE

A married woman who freely had sex with her ex-lover was the subject of a discussion in his case. The petitioner, who was the only accused in this case, was put on trial for offences prohibited by Sections 376(1) and 376(2)(n) of the Penal Code, 1860.

The prosecution’s case was that the petitioner repeatedly sexually attacked the victim, that is the second respondent after making a fraudulent promise of marriage.

JUDGMENT

According to the court, nothing met the requirements of Sections 376(1) or 376(2)(n) of the IPC.

As per the statement made under Section 164 CrPC the petitioner and the victim studied together and were in love. They were planning to get married, but they were unable to do so for a variety of reasons.

The alleged sexual acts with the petitioner occurred while the victim was still married to the other person she later married, according to the allegations.

Respondent 2 claimed that she did not claim that their sexual encounters were forced. However, she claimed that she gave consent to sexual activity after being convinced by the petitioner’s marriage offer.

Consensual sexual activity between a man and a woman after he breaks his commitment to marry her does not constitute rape under Section 376 of the Indian Penal Code unless it is proven that he got the permission for the act by making a false promise of marriage.

In the present case, the married woman who had relations with her previous boyfriend was aware that she could not legally wed the petitioner.

While making a distinction between rape and consensual sex in Deepak Gulati v. State of Haryana, (2013), and Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019), the Supreme Court stated that the Court must carefully consider whether the accused had genuine intent. In order to distinguish between a simple breach of a promise and failing to keep a false promise, it was further noted that if the accused did not make the promise with the express purpose of luring the prosecutrix into engaging in sexual activity, then such an act would not constitute rape, and that if the accused had any nefarious intent or ulterior motives, it would be obvious that rape had occurred.

According to the High Court, the petitioner’s and the victim’s sexual activity was entirely consenting. There is no evidence on file to support the claim that the petitioner made a fraudulent promise.

The Court further stated that because the second respondent was a married woman who was aware that a legal marriage with the petitioner was not possible under the law, no issue of a promise to marry arose and that the offence of rape could not be established because it was clear that her consent was not given in error.

The remaining procedures were therefore annulled by the High Court.

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JUDGEMENT REVIEWED BY NISHTHA GARHWAL

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