While striking the right chord, the Kerala High Court in a most laudable, learned, landmark and latest judgment titled Sreekanth Sasidharan v. State of Kerala & Ors in Crl.MC No. 9201 of 2019 (FIR No. 401/2019 of Peramangalam Police Station on the file of the Judicial First Class Magistrate Court, Kunnamkulam) and cited in 2022 LiveLaw (Ker) 515 that was pronounced finally on October 6, 2022 has reiterated that if a man retracts his promise to marry a woman, the consensual sex they have had will not constitute rape unless it is established that the consent was obtained by him by giving false promise of marriage with no intention of adhering to it, and that promise made was false to his knowledge.

It must be noted that the Single Judge Bench of Hon’ble Mr Justice Kauser Edappagath while quashing a rape case against a 33-year-old man said that the relationship between the accused and the complainant appears to have been purely consensual in nature. The Court also stated clearly that there is no allegation that when he promised to marry her, it was done in bad faith or with the intention to deceive her.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of Hon’ble Mr Justice Kauser Edappagath of Kerala High Court sets the pitch in motion by first and foremost putting forth in para 1 that:
This Crl.M.C has been filed to quash Annexure A1 FIR in Crime No.401/2019 of Peramangalam Police Station u/s 482 of the Code of Criminal Procedure (Cr.P.C.).

Simply put, the Bench then states in para 2 that:
The petitioner is the accused. The 4th respondent is the victim/defacto complainant. The offences alleged against the petitioner are punishable under Sections 406, 420 and 376 of IPC.

To put things in perspective, the Bench then envisages in para 8 that:
The learned Senior Public Prosecutor made available to me the entire case diary. A perusal of the case diary would show that the investigation has reached a fair stage. Almost all the material witnesses were questioned, and their statements were recorded. The statement of the 4th respondent u/s 164 of Cr.P.C was also recorded. Annexure A1(a) FI statement, the statements of the 4th respondent recorded under Section 161 of Cr.P.C as well as under Section 164 of Cr.P.C would show that the petitioner was known to her since August 2010 while she was working as a dance artist in Abu Dhabi Marine Club, UAE.

The statement would further show that their relationship continued till 2019, and they had consensual sexual intercourse several times both in Abu Dhabi and at Chennai. According to her, she came to know about the fact that the petitioner was married five to six years before (i.e., in 2013-14) from one Mr. Praveen. It was alleged that the petitioner told her that he was separately living for the last more than four months and was moving for divorce, and she continued the relationship, and the petitioner used to visit her residence in Chennai and assured her that he would make a proposal for marriage after some time.

Thereafter, she got information from Abu Dhabi that the petitioner was maintaining relationship with some other girls, and hence she backed from the proposal. It was further alleged that thereafter the petitioner threatened her that he would commit suicide and blocked her marriage proposals. It was also alleged that the petitioner came to her aunt’s house in Chennai on 29/3/2019 to register the marriage and to tie the knot at the temple. On 30/3/2019, they went to Rajeswari studio and took photos for conducting the marriage on 01/04/2019. On 31/3/2019, she got the photos of the petitioner with other girls from her friends and on knowing about the same, he left for UAE by cheating her.

Thus, the statement given by the 4th respondent clearly reveals that she has had a relationship with the petitioner since 2010, and in 2013-14, she came to know that the petitioner was married and fully knowing the same; she continued the relationship and had sex with him. The statement further reveals that both have decided to marry, and the petitioner’s parents had proposed to her as well. She specifically admitted that she withdrew from the marriage as she doubted his morality.

Most remarkably, the Bench then enunciates in para 9 that:
Section 375 of IPC, inter alia, states that a man commits rape if he has had any form of sexual intercourse with a woman without her consent. Consent is at the centre of the offence of rape. Explanation 2 to Section 375 refers to the form of ‘consent’. If we analyze Section 375 of IPC, there is no such mention of the consent obtained under the false promise of marriage. Section 90 of IPC refers to the expression ‘consent’. Section 90, though, does not define ‘consent’, describes what is not consent. It says that ‘consent’ is not consent if it is given by a person under a misconception of fact and if the person doing the act knows or has reason to believe that the consent was given in consequence of such misconception. Relying on this, the courts have interpreted the word ‘consent’ in the description 'secondly' under Section 375, i.e., 'without her consent', and held that any consent given under a misconception of fact is vitiated and, therefore, the act becomes an act without consent, thereby making it rape.

While citing the most relevant case laws, the Bench then hastens to add in para 10 observing that:
In Uday v. State of Karnataka {(2003) 4 SCC 46} - which was the first in the line of judgments – the Apex Court held that a false promise to marry cannot come within the ambit of ‘misconception of fact’ and that the consent given by the woman to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact.

It was further held that there is no straitjacket formula for determining whether consent given by the woman to sexual intercourse is voluntary or whether it is given under a misconception of fact and that the court needs to look at surrounding circumstances and weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them. However, later, in Deelip Singh v. State of Bihar {(2005) 1 SCC 88}, the Apex Court, for the first time, unequivocally held that a false promise to marry falls within the ambit of the description secondly of Section 375 i.e. without her consent. It was held that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her will vitiate the consent given.

In Pradeep Kumar v. State of Bihar {(2007) 7 SCC 413} while reiterating that a promise to marry without anything more will not give rise to the ‘misconception of fact’ within the meaning of Section 90 of the Evidence Act, clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her will vitiate the consent. The Apex court qualified the proposition that it stated earlier by adding the qualification at the end unless the court can be assured that from the very inception, the accused never really intended to marry her. In Deepak Gulati v. State of Haryana {(2013) 7 SCC 675} and in Dhruvaram Murlidhar Sonar (Dr) v. State of Maharashtra (AIR 2019 SC 327), the Apex Court drawing a distinction between rape and consensual sex, observed that the Court must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust.

Drawing distinction between mere breach of a promise and not fulfilling a false promise, it was further observed that if the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act will not amount to rape and that if the accused had any mala fide intention or had clandestine motives, it is a clear case of rape. Again in Pramod Suryabhan Pawar v. State of Maharashtra and Another {(2019) 9 SCC 608}, the Apex Court held that not every failed promise to marry could lead to a rape charge. The Bench made a distinction between breach of a promise and a false promise, which would lead to ‘misconception of fact’ vitiating a women’s ‘consent’ in law.

It was held that where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a ‘misconception of fact’ that vitiates the woman's ‘consent’ under Section 375 (rape) of IPC, on the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it, said the judgment. It emphasized that the ‘consent’ of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed action and to establish whether the ‘consent’ was vitiated by a ‘misconception of fact’ arising out of a promise to marry, two propositions must be established,:

1. the promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given.
2. the false promise itself must be of immediate relevance or bear a direct nexus to the woman's decision to engage in the sexual act.

The Court added that an individual, who makes a reasoned choice to act after evaluating various alternative actions as well as the various possible consequences flowing from such action or inaction, consents to such action.

In Sonu alias Subhash Kumar v. State of Uttar Pradesh (AIR 2021 SC 1405), while quashing a charge sheet alleging an offence under Section 376 of IPC, the Apex Court observed that if there is no allegation to the effect that the promise to marry given to the victim was false at the inception, no offence of rape has been attracted.

Recently in Shambhu Karwar v. State of Uttar Pradesh (AIR 2022 SC 3901), the Apex Court held that in a prosecution for rape on the false promise of marriage, the crucial issue to be considered is whether the allegations indicate that the accused had given a promise to the victim to marry which at the inception was false and based on which the victim was induced into a sexual relationship. It was further held that the test to exercise power under Section 482 of Cr.P.C is whether the allegation in the FIR discloses the commission of a cognizable offence.

As a corollary, the Bench then deduces most rationally in para 11 holding that, The legal position which can be culled out from the judicial pronouncements referred above is that if a man retracts his promise to marry a woman, consensual sex they had will not constitute an offence of rape under Section 376 of the IPC unless it is established that the 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 prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that the accused had no intention to marry the prosecutrix at all from the very inception.

It is worth noting that the Bench then stipulates in para 12 that:
The crucial issue to be considered is whether the allegations indicate that the petitioner had given a promise to the 4th respondent to marry, which at the inception was false and based on which the 4th respondent was induced into a sexual relationship. A close reading of Annexure A1(a) FI statement, the statements of the 4th respondent recorded under Section 161 of Cr.P.C and under Section 164 of Cr.P.C would show that the allegation of sexual intercourse allegedly had between the petitioner and the 4th respondent is so vague. According to the 4th respondent, the petitioner committed sexual assault on her at his house in Abu Dhabi, at Radha Park hotel in Chennai and at his residence in Chennai. There is no specific mention of the date, time, and other details of those alleged sexual acts under the pretext of marriage.

The materials on record would show that the 4th respondent, upon interrogation, could not identify the hotel Radha Park or the room to support her version. In the report filed by the investigating officer before this court on 18th November 2020, in paragraph 6, it is stated that the investigation team went to Chennai for investigation and to prepare the mahazar of the place of occurrence at Radha Park, Chennai, along with the victim, but could not prepare it as the victim could not remember the date of occurrence, room number where the crime occurred nor could she identify the room at Radha Park. It is further stated that though available particulars of the accused’s stay at Radha Park were collected, she denied the occurrence on those dates for other reasons.

Most significantly, the Bench then minces no words to hold explicitly in para 13 of this notable judgment that:
As stated already, admittedly, the petitioner and the 4th respondent were in a consensual relationship right from 2010 until 2019. The 4th respondent has also admitted that in the year 2013-14, she came to know that the petitioner was married. Still, she continued the relationship and had sexual intercourse with him. It is stated in Annexure A1(a) that the parents of the petitioner went to the parents of the 4th respondent and made a proposal. It is also revealed that the 4th respondent, after coming to know of some other relationships of the petitioner with other women, decided to withdraw from the marriage. Annexure A1(a) or the statement of the 4th respondent recorded under Sections 161 and 164 would not reveal that the petitioner made any promise with the sole intention to seduce her to indulge in sexual acts.

On a perusal of Annexure A1(a) statement, it is apparent that the petitioner had no mala fide intention or clandestine motives to conduct the alleged rape under the pretext of marriage. Further, even as per the allegations, it is evident that the marriage could not be materialised as the 4th respondent withdrew from the marriage, doubting the petitioner’s morality and on account of other unforeseen circumstances beyond the control of the petitioner.

As we see, the Bench then states in para 14 that:
Annexure A6 is the extract of the post uploaded by the 4th respondent on her Facebook account, raising so many allegations against the petitioner. A perusal of the same would show that there is no allegation of any sexual assault or rape against the petitioner. Annexures A7, A7(a) and A8 would show that the petitioner had preferred complaints regarding the said post as early as 12/4/2019, 16/4/2019 and 18/4/2019 against the 4th respondent. It was thereafter that Annexure A1 FIR was registered.

Most commendably, the Bench then puts it succinctly in para 15 stating that, Against this backdrop and taking note of the allegations in the FIS as they stand, it is impossible to find the essential ingredients of an offence u/s 376 of IPC. The relationship between the petitioner and the 4th respondent appears to be purely consensual in nature. The relationship, as noted above, was in existence prior to the marriage of the petitioner and continued to subsist thereafter and even after the petitioner obtained the divorce. There is no allegation in the FIS that when the petitioner promised to marry the 4th respondent, it was done in bad faith or with the intention to deceive her.

The admitted fact that the 4th respondent is having a relationship with the petitioner since 2010 and she continued the relationship knowing about his marriage from 2013 onwards would nullify the story regarding the sexual intercourse on the false pretext of marrying her. The alleged sex can only be termed as one on account of love and passion for the petitioner and not on account of misrepresentation made to her by the petitioner. Therefore, even if the facts set out in the FIS are accepted in totality, no offence u/s 375 of IPC has been made out.

Finally, no less significant is what is then laid bare in para 16 stating that, With reference to the offence under Section 406 or 420 of IPC, the allegations are so vague. There are absolutely no allegations to attract the ingredients of Sections 406 and 420 of IPC. The only allegation in the FIS is that the petitioner has obtained a total sum of 15,00,000/- and five sovereigns of gold ornaments giving a false promise of marriage. There is no allegation that there was an intention to deceive on the part of the petitioner at the time of handing over the money and gold ornaments. No fraudulent or dishonest inducement under the pretext of marriage can be revealed to attract the offence under Section 406 or 420 of IPC.

Annexure A1(a) statement would reveal that no exploitation had taken place under the pretext of marriage, and there was no fraudulent or dishonest inducement of the 4th respondent by the petitioner to constitute the offence of cheating. In the report submitted by the investigating officer on 30/8/2019, in WP(C) No.22564/2019, it is stated that on investigation, it was found that there was no solid evidence with the victim of the offence of cheating and breach of trust. Hence, offences under Sections 406 and 420 of IPC are also not attracted. Considering the above findings, I am of the view that no useful purpose will be served by allowing the criminal prosecution against the petitioner to continue. Hence, all further proceedings in Annexure A1 FIR in Crime No.401/2019 of Peramangalam Police Station hereby stand quashed. Crl.M.C. is allowed as above.

In essence, the inevitable conclusion that has to be drawn here is that the Kerala High Court has made it abundantly clear that the allegation of rape on a man on false marriage promise is just not sustainable if women continued relationship even after knowing about man’s marriage. It merits no reiteration that all Courts must pay heed to what the Kerala High Court has laid down so very clearly, cogently and convincingly in this leading case. No denying it!

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