Consensual sex with married woman on false promise to marry her won't amount to rape: Kerala High Court

The Court said that a promise made by the accused to a married woman that he would marry her, is a promise which is not enforceable under law and, therefore, rape under Section 376 of IPC will not be attracted.
Kerala High Court with Justice Kauser Edappagath
Kerala High Court with Justice Kauser Edappagath

The Kerala High Court recently held that consensual sex with a married woman on the basis of false promise of marriage will not amount to rape since such promise is not enforceable under law [Tino Thankachan v State of Kerala].

Justice Kauser Edappagath reiterated his previous decision that the promise alleged to have been made by the accused to a married woman that he would marry her, is a promise which is not enforceable under law and, therefore, the offence of rape under Section 376 of the Indian Penal Code (IPC) will not be attracted.

“It is a case where the victim who is a married woman voluntarily had sex with her lover. She knew pretty well that she cannot enter into a lawful marriage with the petitioner, in as much as she is a married woman. Recently this Court in XXX Vs. State of Kerala [2022 KHC 296] has held that the promise alleged to have been made by the accused to a married woman that he could marry her is a promise which is not enforceable in law. Such an unenforceable and illegal promise cannot be a basis for the prosecution under Section 376 of IPC. Here, no question of promise to marry arise, since, the victim is a married woman and she knew that legal marriage with the petitioner was not possible under the law,” the order said

The Court was considering a petition filed by the accused to quash all the criminal proceedings pending against him for offences under Sections 376 (punishment for rape), 417 (punishment for cheating), and 493 (cohabitation caused by a man deceitfully inducing a belief of lawful marriage) of the Indian Penal Code (IPC).

According to the first information statement, both the accused and the victim, who are natives of India. had met through Facebook in Australia. The said relationship developed into a love affair and they decided to marry. But the marriage did not take place. In the meanwhile, on two occasions they had consensual sexual intercourse.

During the relevant period, the woman was still married though separated from her husband and divorce proceedings were still going on.

The prosecution case was that the accused after giving a false promise of marriage, sexually assaulted the woman on several occasions and, thereby, committed the offence of rape.

The Court noted that it was evident from the first information statement that the sexual intercourse was consensual in nature. The woman consented to sex persuaded by the promise of marriage given by the petitioner. 

“It is settled that if a man retracts his promise to marry a woman, consensual sex they had would not constitute an offense of rape under Section 376 of IPC unless it is established that consent for such sexual act was obtained by him, by giving false promise of marriage with no intention of being adhered to and that promise made was false to his knowledge,” the order said

The Court noted that the basic ingredients of Section 376 of the IPC are not attracted since the woman knew that the promise cannot be enforced since she was a married woman.

"An unenforceable and illegal promise cannot be a basis for the prosecution under Section 376 of IPC. Here, no question of promise to marry arise, since, the victim is a married woman and she knew that legal marriage with the petitioner was not possible under the law," the Court said.

The Court also held that and there was nothing on record to attract the ingredients of Sections 417 and 493 of the IPC.

Therefore, the Court quashed the case against the accused on the ground that a man’s promise to marry an already married woman would not attract provisions of rape under Section 376.

The petitioner was represented by advocate Mahesh V Ramakrishnan. The respondent was represented by Public Prosecutor Sangeetha Raj.

[Read Order]

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[Tino Thankachan v State of Kerala].pdf
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