Merely because a consensual sexual relationship did not culminate in marriage will not be sufficient to attract the offence of rape under Section 376 of the Indian Penal Code, the Kerala High Court reiterated on Friday, reports Bar and Bench.
Justice Bechu Kurian Thomas said that in order establish the offence of rape, it has to be proved that there was a promise to marry based on which consent of the woman to have sex was obtained, and the maker of the promise should have had no intention to uphold his word at the time of making it.
“A sexual relationship between two willing adult partners will not amount to rape coming within the purview of section 376 of the IPC, unless the consent for sex was obtained by a fraudulent act or misrepresentation. Even if a sexual relationship between two willing partners does not culminate in marriage, still the same will not amount to rape, in the absence of any factor that vitiates the consent for sex. A subsequent refusal to marry or a failure to lead the relationship into a marriage are not factors that are sufficient to constitute rape even if the partners had indulged in a physical relationship,” the Court said.
The Court underlined that to establish an offence of rape, the promise to marry should be intentionally false and the consent of the woman was predicated on such a promise.
“In order to convert a physical relationship between a man and a woman into rape due to the failure to abide by the promise of marriage, it is essential that the decision of the woman to engage in the sexual act must be based on the promise of marriage. To establish a false promise, the maker of the promise should have had no intention to uphold his word at the time of making it and the said promise should have induced the woman to submit herself to the physical relationship. There must be a direct nexus between the physical union and the promise of marriage,” the order stated.
A subsequent refusal to marry or a failure to lead the relationship into a marriage are not factors that are sufficient to constitute rape even if the partners had indulged in a physical relationship
Kerala High Court
The Court was considering the bail application moved by advocate Navaneeth N Nath, a Central Government Counsel in Kerala, who was arrested in connection with a sexual abuse complaint made against him by a colleague, another lawyer.
The allegation against Nath was that he had been in a relationship with his colleague for over four years but in the end, he decided to marry another woman.
When the complainant learnt of this and met Nath’s fiance at a hotel, she allegedly tried to commit suicide by slitting her veins. While speaking to the police after the incident, the woman recounted her story, including that she had been pregnant twice when she was with Nath.
Subsequently, the Ernakulam Central Police registered a crime alleging offences punishable under Sections 376(2)(n) (repeated rape of same woman) and 313 (causing miscarriage without woman’s consent) of the Indian Penal Code and accordingly arrested Nath.
The Court noted that in the first information statement given by the complainant, she said that she continued in the relationship even though Nath had conveyed to her that he does not intend to marry anyone.
Considering the facts and circumstances of the case, the Court said that even though the offences alleged against the petitioner are very serious, still, the possibility of him fleeing from justice is remote especially since he is stated to be a Central Government Counsel.
Therefore, the Court granted Nath bail subject to some conditions and directed him to appear before the Investigating Officer as and when required.
Nath was represented by Senior Advocate Ramesh Chander and advocate CP Udayabhanu.
Advocate John S Ralph appeared for the complainant and Public Prosecutor KA Noushad for the State.
