Consensual affair with married woman won't attract offence of rape on promise of marriage: Kerala High Court

The Kerala High Court recently quashed criminal proceedings against a 38-year-old man accused of rape and cheating, holding that his eight-year intimate relationship with the complainant-woman was consensual and not induced by any promise of marriage [Pradeep v The Station House Officer & another]

Justice G Girish observed that the complainant began a relationship with the accused while her husband was alive, and continued the relationship for four years even after his death, making it clear that she was in a consensual intimate relationship with the accused, which could not be termed as rape based on false promise of marriage.

"It is not possible to accept the contention of the de facto complainant that she had extended consent for sexual relationship with the petitioner at a time when her husband was alive, believing the offer made by the petitioner to marry her. The subsequent conduct of the de facto complainant maintaining the relationship with the petitioner for about four years after the death of her husband, also show that the sexual relationship between the petitioner and the de facto complainant cannot be classified as rape," the Court observed.

It also clarified that the accused's subsequent marriage to another woman did not retrospectively turn his previous consensual relationship with the complainant into rape, thereby making it clear that the charge against him would not stand.

"The fact that the accused went in search of greener pasture for giving vent to his promiscuous sexual urge, and started a new relationship in the nature of marriage with another lady, by itself will not bring his prior relationship with the victim with in the meaning of rape. Hence, the proceedings initiated against the accused in connection with the commission of rape, is prima facie unsustainable," the Court added.

According to the prosecution, the accused had befriended the complainant in 2009 while she was married.

He supported her financially and later engaged in sexual relations with her after allegedly promising to marry her.

After her husband's death in 2013, she claimed that the petitioner continued living with her and even tied a knot in her chain before a lamp to make her believe they were married.

While being in the relationship, she discovered that the accused married another woman but the accused assured her that he only considered the complainant as his wife and continued to have physical relations with her.

However, after the complainant confronted the accused's wife, he abandoned ended the relationship with the complainant.

Following this, a crime was registered against him for offences under Sections 493 (deceitfully making a woman believe she is lawfully married to him), 496 (fraud marriage), and 376 (punishment for rape) of the Indian Penal Code, 1860 (IPC) and subsequently criminal proceedings were initiated against him.

This prompted the accused to approach the Court seeking to quash the proceedings, where he argued that the relationship was consensual and none of the allegations were made out against him.

For the offences under Sections 493 and 496 IPC, the Court observed that they were cognizable only based on a complaint by an aggrieved party and could not be sustained in a trial based on the police final report.

Regarding the rape allegation under Section 376 IPC, the Court clarified that a mere promise to marry was not a ‘fact’ under law, as a false promise to marry would amount to a misconception of fact only if the accused never intended to marry and induced the victim solely to satisfy his desires.

But in the present case, the sexual relationship continued for several years, even after the complainant learned of the accused’s marriage to another woman, showing that it was consensual.

Thus, the essential elements of rape including absence of consent due to misconception of fact were not present, the Court said while allowing the petition and quashing all proceedings against the accused.

The accused was represented by advocate B Mohanlal.

The complainant was represented by advocate Ajith Krishnan.

Public Prosecutor Seena C appeared for the State.

[Read Order]