In a unique case, the Orissa High Court has come to the rescue of man who was sentenced to five years’ imprisonment for entering a married woman’s house to pursue an “illicit” sexual relationship with her [Ajit Kishan vs State Of Odisha].

In May 2025, the accused had been found guilty of criminal trespass under Section 450 of the Indian Penal Code (IPC) for entering the house in the absence of the woman’s husband.

Interestingly, the rape charge against him was dismissed by the trial court after it found that the relationship was consensual.

On February 13, Dr. Justice Sanjeeb K Panigrahi of the Orissa High Court set aside the man’s criminal trespass conviction as well, holding that the mere fact that the woman was married would not render his entry into her house criminal so as to attract Section 450 of the IPC.

“Once the allegation of rape has been rejected on merits, the inference that the appellant entered the house with intent to commit an offence punishable with imprisonment for life cannot be sustained in the absence of independent evidence establishing such intent,” the Court said.

The criminal case had been registered on a complaint by the woman’s husband, who alleged that the accused, Ajit Kishan entered his house in his absence and raped his wife in 2021. 

An ad hoc Additional District and Sessions Judge in May 2025 ruled that the sexual relationship between the accused and the woman was consensual. It thus acquitted Kishan of the rape charge.

However, the trial court held that the accused had no right to enter the house to have “illicit sexual relations” with her, especially in the absence of her husband. It thus convicted the accused of criminal trespass.

Challenging his conviction, the accused submitted that the woman was working under him in a company and they had “developed a love affair”. The prosecution gave a criminal colour to what was essentially a consensual relationship, the Court was told.

However, the prosecution argued that mere admission of a prior relationship does not negate the offence of house trespass, particularly when the woman denied inviting the accused to her house on the date of the occurrence.

Considering the law and evidence, the High Court noted that the principal question was whether the conviction under Section 450 of the IPC can be sustained when the trial court has ruled the relationship to be consensual.

The Court examined the definition of criminal trespass under Section 441 of the IPC and found that intention at the time of entry is the determinative factor.

Mere entry into property is not sufficient to make out a case of criminal trespass under Section 450 of the IPC, the Court noted. Rather, there must be an intention to commit a criminal offence punishable with life imprisonment.

“The learned Trial Court proceeded on the reasoning that the victim, being the wife of the informant, had no right to permit the appellant to enter the house during the absence of her husband, and that even if the relationship was consensual, such entry was illegal. However, criminal liability must be founded strictly upon statutory ingredients and not upon considerations of moral or social impropriety,” the Bench said.

Taking note of the Supreme Court verdict that ruled that criminalising adultery was unconstitutional, the Court added,

“Once the learned Trial Court has recorded a finding that the relationship between the appellant and the victim was consensual in nature, the mere fact that the victim was a married woman cannot render the entry ipso facto criminal so as to attract Section 450 IPC.”

The Court also held that the prosecution had failed to establish that the accused man's entry to the woman's house was by force or intimidation.

On the contrary, the High Court noted, the woman herself had opened the door. Thus, it acquitted the accused.

“In view of the findings recorded by the learned Trial Court itself regarding the consensual nature of the relationship and the absence of force, this Court is of the considered opinion that the essential ingredients of Section 450 IPC have not been proved beyond reasonable doubt,” it said.

Advocate A Ray represented the appellant.

Advocate Udit Ranjan Jena represented the State. 

[Read Judgment]