Motive of accused has to be examined to decide whether sex on promise of marriage constitutes rape: Kerala High Court [Read Order]
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Motive of accused has to be examined to decide whether sex on promise of marriage constitutes rape: Kerala High Court [Read Order]

The Court made the observation while disposing of an anticipatory bail application in a case involving a rape charge and allegations that the accused had sexual intercourse with the complainant on the promise of marriage

Lydia Suzanne Thomas

The Kerala High Court recently allowed an anticipatory bail application moved by a man accused of rape on allegations that he had sex with the complainant on the pretext of marrying her. In such cases, the Court observed that the motive of the accused has to be considered (Shanil v. State of Kerala and Anr).

Referring to the Supreme Court's ruling in Dr. Dhruvaram Muralidhar Sonar v. State of Maharashtra & Ors, Justice Raja Vijayaraghavan V observed,

"... there is a clear distinction between rape and consensual sex. The question to be considered in such cases is whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise to that effect only to satisfy his lust. The former is not rape but the latter will fall within the ambit of cheating and deception."

The complainant had alleged that the applicant/accused had asked her to go to the district of Kozhikode to purchase clothes for their wedding. While there, the complainant charges the applicant of having subjected her to penetrative sexual abuse grounded on his promise to marry.

It was also submitted that he had clicked photographs of her and threatening to publish the same. Further, the complainant accused the applicant of obtaining a sum of Rs. 40,000 and a gold chain from her, which the accused counters as having been financial assistance.

While deciding on the anticipatory bail plea moved by the accused, the Kerala High Court made a distinction between a “breach of a promise to marry” and a “false promise of marriage.

The Court held that sexual intercourse engaged in by reason of a bona fide promise to marry could not be construed as rape as such an act arises out of “love and passion for the accused and not solely on account of the misconception created by accused”.

The Court further explained that when such a promise is breached for reasons beyond the control of the accused, the act would not fall within the ambit of rape.

However, any sexual intercourse engaged in on a false promise of marriage “would be a form of cheating and deception”, being engaged with mala fides “to satisfy lust”, the Court said.

The Court concluded that, prima facie, a complainant’s consent to sexual intercourse with a person with whom “she is deeply in love” on a promise that he would marry her later could not be considered as given under a “misconception of fact."

In this backdrop, the Court concluded that the custodial interrogation of the applicant was not necessary for the investigation and allowed the application for pre-arrest bail.

Advocate Raghul Sudheesh appeared for the petitioner, while Public Prosecutor SR Renjith appeared for the State.

Read the Order here:

Shanil v. State of Kerala and Anr..pdf
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