Retraction from marriage promise to married woman not ground for rape: Kerala HC

Kochi: The Kerala High Court has found a rape case accused not a subject to be punished under Section 376 of the Indian Penal Code (IPC) for the physical relationship he had on the promise of marriage to an already married woman.

The rape charges against the accused will not stand as the petitioner voluntarily had sex with the accused with the full knowledge that she could not enter into a legal marriage with the accused, the single bench of justice Kausar Edappagath said quashing the rape charges against the 25-year-old accused.

The Kollam police filed the rape case in 2018 following a complaint by the petitioner who said she was sexually assaulted several times in Australia and in the country on the false promise of marriage by the accused.

The petitioner's complaint also reasoned her consent for sex with the repeated promise of marriage by the accused. Though married, the woman is separated from her husband and moved her papers for divorce.

"Such an unenforceable and illegal promise cannot be a basis for the prosecution under section 376 of the IPC. There is no case for the accused that the sex they had was after inducing a belief in lawful marriage. There are no ingredients to attract the offence of cheating," the court said.

The consensual sex they had would not amount to a case of rape under Section 376 of IPC, even if a man retracts his promise to marry a woman unless there is evidence to prove that the man obtained consent for sex by giving a false promise of marriage with no intention of being adhered to, the court further said.