In an extremely courageous, commendable, cogent, composed and creditworthy judgment titled Navaneeth N Nath v State of Kerala in Bail Application No. 5164 of 2022 and cited in 2022 LiveLaw (Ker) 335, the Kerala High Court while granting bail to a Central Government Counsel in a sexual assault case has held that a subsequent refusal to marry or a failure to lead the relationship into a marriage is not sufficient to constitute the offence of rape even if the partners had indulged in a physical relationship. It must be mentioned here that the Single Judge Bench of the Kerala High Court comprising of Hon’ble Mr Justice Bechu Kurian Thomas observed quite explicitly that 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. The Court also sought to add that consent for sex obtained by a promise to marry will amount to rape only when the promise was given in bad faith or is vitiated by fraud or was not intended to be adhered to at the time of making it.

At the outset, the Bench sets the ball rolling by first and foremost putting forth in para 1 that, This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure, 1973.

Simply put, the Bench then states in para 2 that, Petitioner is the accused in Crime No. 711 of 2022 of Ernakulam Central Police Station, alleging offences punishable under section 376(2)(n) and section 313 of the Indian Penal Code, 1860.

To put things in perspective, the Bench then envisages in para 3 that, On 21.06.2022, at around 10.30 pm, the petitioner, a lawyer practising in the High Court of Kerala was arrested on the basis of a statement given by the victim in the above-referred crime. The victim is also an Advocate practising in this Court and she gave her statement to the police from the Intensive Care Unit of a hospital in Ernakulam. She was admitted to the hospital as she had slit her wrist. Based on her statement, the police arrested the petitioner on the same night itself since the allegations revealed the offence of rape.

On the one hand, the Bench states in para 4 that, Prosecution alleges that on 21-06-2022, the victim slashed her wrist while she was inside the room where the petitioner and his fiancee were staying and thereafter she was rushed to the hospital from where she gave her statement implicating the petitioner. The crime was registered alleging that petitioner had raped the victim at various places including at a hotel in Ernakulam, at Vagamon and at other places after promising to marry her and thereafter backed out from the promise and decided to marry another lady. The prosecution alleges that on coming to know about the proposed marriage, the victim attempted to commit suicide. The prosecution further alleges that during the course of the investigation it was revealed that the victim was forced to undergo two miscarriages at the instigation of the petitioner and hence section 313 IPC was also incorporated.

On the other hand, the Bench then mentions in para 5 that, Sri.M.Ramesh Chander, learned Senior Counsel for the petitioner duly instructed by Adv.C.P.Udayabhanu contended that the prosecution case is built upon a false premise and that even if the entire case is admitted for argument’s sake, still, an offence under section 376 IPC will not be made out. The learned Senior Counsel asserted that the first statement given by the victim reveals only a relationship of love for the past four years along with a consensual sexual relationship. There was never any promise of marriage and the relationship became physical as a natural course, without any promise to marry. It was further argued that even the allegation of aborting her pregnancy twice would not advance the case of the prosecution since the continuance of the relationship even after the first pregnancy itself, is a clear indication that there was never any promise of marriage and on the other hand, the relationship was purely consensual.

In addition, the Bench then observes in para 6 that, The Senior Counsel further submitted that though petitioner wanted to marry the victim due to reasons beyond his control, the relationship could not fructify into a marriage. If a relationship does not result in marriage due to objections from family or for other reasons, such conduct cannot convert the physical union into a rape. According to the learned counsel, the statement of the victim given on 21.06.2022 belies the entire prosecution story and the subsequent allegations incorporated by the police are factually and legally not tenable. The learned Senior Counsel submitted that in any event, since the investigation is practically completed, continued detention of the petitioner is not warranted, especially since no further questioning of the petitioner or recovery is required.

Most significantly, the Bench then after listening to both sides minces no words to hold in para 10 that, 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 sexual relationship between a man and a woman can amount to rape only if it was against her will or without her consent or when consent was obtained by force or fraud.

Equally significant is what is then pointed out in para 11 that, Consent for sex obtained by a promise to marry will amount to rape only when the promise was given in bad faith or is vitiated by fraud or was not intended to be adhered to at the time of making it. 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 Supreme Court had laid down the aforesaid principles in the decision in Pramod Suryabhan Pawar v. State of Maharashtra and Another [(2019) 9 SCC 608]. The said principles were reiterated in the decision in Sonu alias Subhash Kumar v. State of Uttar Pradesh and Another (AIR 2021 SC 1405) also.

It cannot be glossed over that the Bench then discloses in para 12 that, In the FI Statement given by the victim, it is stated that the accused had promised to marry her and had sexually assaulted the victim several times. However, she was aware that petitioner became acquainted with and got close to another lady, with whom he is now engaged to marry. Victim herself had stated that petitioner had conveyed to her that he does not intend to marry anyone and despite the same when the fiancee of the petitioner conveyed to her their decision to marry each other, defacto complainant went over to the room where the petitioner and his fiancee were staying and gashed her wrist with a blade. The victim also says that she was in love with the petitioner for the past four years.

For sake of clarity, the Bench then specifies in para 13 stating that, Though the aforesaid narrative will have a bearing at the time of trial, I remind myself that this Court is only considering an application under section 439 of the Cr.P.C for grant of regular bail. The parameters that govern the grant of bail are different from the parameters to be considered during the trial.

While citing the relevant case law, the Bench then observes in para 14 that, The Supreme Court had observed in Prahlad Singh Bhati v. NCT, Delhi and Another [(2001) 4 SCC 280] as below:

The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations.

Be it noted, the Bench then deems it fit to state in para 15 that, In this context, this Court reminds itself that the concept of bail being the rule and jail an exception still permeates our system of administration of justice, as observed by the Supreme Court in P. Chidambaram v. Directorate of Enforcement [(2020) 13 SCC 791].

Most remarkably, the Bench then clearly states in para 16 that, When the aforesaid factors are borne in mind, it can be appreciated that 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. The further factors like the arguable points on the merits of the case, the absence of criminal antecedents of the petitioner, the absence of the requirement of any further recovery, and the fact that the investigation is practically completed, all lean in favour of the petitioner being released on bail. Taking note of the above aspects which are material while considering a bail application under section 439 Cr.P.C, I am of the view that the continued detention of the petitioner is not essential.

It is worth noting that the Bench then holds in para 17 that, Accordingly, I allow this bail application on the following grounds:

1. Petitioner shall be released on bail on him executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction.
2. Petitioner shall continue to appear before the Investigating Officer once every alternate Saturday between 9 a.m. and 11 a.m., for a period of three months.
3. Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence or contact the victim or her family members directly or indirectly or through an associate of his; nor attempt to dominate the victim or her family.
4. Petitioner shall appear before the Investigating Officer as and when required.
5. Petitioner shall not commit any offence while he is on bail.
6. Petitioner shall not leave India without the permission of the Court having jurisdiction.

Most forthrightly, the Bench then makes it clear in para 18 that, In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law, notwithstanding the bail having been granted by this Court.

Finally, the Bench then concludes by holding in para 19 that, It is clarified that the observations made in this order are purely for the purpose of considering this bail application and shall not have any effect on the merits of the case in any other proceeding.

In a nutshell, this brief, brilliant, bold and balanced judgment by the Kerala High Court leads us to the ineluctable conclusion that subsequent refusal to marry after sex is not sufficient to constitute the offence of rape. Of course, the Court has been extremely forthright to candidly hold that the sexual relationship between a man and a woman can amount to rape only if it was against her will or without her consent or when her consent was obtained by force or fraud. There can be just no denying or disputing it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh