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Kerala HC Quashes Court Proceedings for Rape Case; Said ‘Promise of Marriage to Married Woman Not Constitute Rape’

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Kerala HC Law Insider

Akansha Upadhyay

Published on: 25 November 2022 at 22:51 IST

The Kerala High Court recently held a 25-year-old man, Tino Thankachan, a resident of Punalur in Kollam, was charged under Sections 376 (rape), 417 (cheating) and 493 (fraudulent inducement for sex).

Justice Kauser Edappagath ruled that, “consensual sex with an already married woman on the pretext of a false promise of marriage cannot attract the provisions of rape against a man under section 376 of the Indian Penal Code”

According to the prosecution, Thankachan sexually assaulted a woman who had been separated from her husband on a false promise of marriage, which amounted to rape.

Pronouncing the verdict on November 22, Justice Kauser Edappagath held that the victim had sex voluntarily knowing full well that she cannot enter into a lawful marriage with the petitioner since she is a married woman.

“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,”

The judge said, adding that there are no ingredients to attract the offence of cheating either. “There is also nothing on record to attract the ingredients of Sections 417 and 493 of the IPC,” he added.

The court further noted that the consensual nature of sexual intercourse was clear from the first information statement that the woman had consented to sexual intercourse after the petitioner had promised to marry her.

It is settled that “if a man retracts his promise to marry a woman, consensual sex they had would not constitute an offence 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 read.