ORDER :

This Crl.M.C. has been filed to quash all further proceedings in S.C.No.356/2021 on the file of the Additional Sessions Court-II (Special), Kottayam.

2. The petitioner is the sole accused. He faces trial for the offences punishable under Sections 376(1) and 376(2)(n) of the IPC.

3. The prosecution case in short is that the petitioner after giving a false promise of marriage sexually assaulted the victim/the 2nd respondent on several occasions from 16.12.2020 to 29.12.2020.

4. I have heard Sri.Nirmal V.Nair, the learned counsel for the petitioner and Sri.Sangeetha Raj, the learned Public Prosecutor.

5. The learned counsel for the petitioner submitted that, even if the allegations in the First Information Statement together with all the materials collected during the investigation are taken at its face value they do not constitute the offences alleged against the petitioner.

6. I have gone through the FIS as well as the statement given by the victim under Section 164 of the Cr.P.C. There is absolutely nothing to attract the basic ingredients of Section 376(1) or 376(2)(n) of the IPC.

7. A reading of the FIS and statement under Section 164 of the Cr.P.C. would show that the petitioner and the victim studied together and they were in love. In fact, they had decided to marry. But due to some reasons beyond their control they could not marry. Later on, the victim married another person and the alleged sexual acts with the petitioner were taken place during the subsistence of the marriage of the victim with the said person. A reading of both the statements of the victim would show that she got married on 5.7.2012 and in the year 2016 she again met the petitioner. Thereafter, they started their relationship again. It is specifically stated in the statement given by the petitioner under Section 164 of the Cr.P.C. that on 16.12.2020 the petitioner came to her house and told her that he still loves her and thereafter they engaged in sex. It is further stated that thereafter on five to six occasions they had sex after giving promise that the petitioner would marry her.

8. There is no case for the 2nd respondent that, the sex they had, was forcible one. But, according to her, she consented for sex persuaded by the promise of marriage given by the petitioner. 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 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. (see Ranjith v. State of Kerala [2022 (1) KLT 19]).

9. As stated already, it is a case where the victim who is a married woman voluntarily had sex with her former lover. She knew pretty well that she cannot enter into a lawful marriage with the petitioner. Recently, this Court in Anilkumar v. State of Kerala [2021 (1) KHC 435] has held that the promise alleged to have been made by the accused to a married woman that he would marry her is a promise which is not enforceable in law as it is against public policy in view of the mandatory provisions contained in Section 23 of the Indian Contract Act and such an unenforceable and illegal promise cannot be the basis for the prosecution to contend that, the consent of the woman, who had sexual relationship with the accused, was obtained on the basis of misconception of fact as understood in Explanation 2 of Section 376 of the IPC and Section 90 of the IPC.

10. The Apex Court 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], drawing distinction between rape and consensual sex observed that the court must very carefully examine whether the accused 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. In drawing distinctio