Consent for sexual relations does not equate to rape when both parties are aware of existing circumstances, even if a false promise of marriage is made.

ORDER :

G.GIRISH, J.

The petitioner is the accused in S.C.No.1868/2022 on the files of the Fast Track Special Court, Kollam. The offence alleged against him is under Section 376(2)(n) of the INDIAN PENAL CODE , 1860.

2. The prosecution case is that the petitioner indulged in sexual relationship with the defacto complainant by giving the false promise of marriage to her. It is alleged that in the above relationship, the defacto complainant got impregnated. The case has been registered by the Kollam West Police, on the basis of the First Information Statement given by the defacto complainant. After completion of the investigation, the Inspector of Police, Kollam West Police Station, filed the Final Report before the court.

3. In the present petition, the petitioner would contend that the offence of rape is not attracted in the facts and circumstances of this case, since the allegations, if at all accepted as such, would reveal that the relationship between the petitioner and the defacto complainant was consensual. It is further pointed out that the defacto complainant is a married lady, having a child also, and that she cannot be expected to have extended her consent due to misconception of facts about the offer of the petitioner to marry her.

4. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala.

5. The learned counsel for the petitioner has produced an Annexure P6 marriage certificate, which would go to show that the defacto complainant was married to another person as early as on 23.05.2019. Furthermore, the learned counsel for the petitioner pointed out that Annexure 5 copy of the petition filed by the husband of the defacto complainant before the Family Court, Kollam, would reveal that the marriage relationship of the defacto complainant with that person was subsisting at the time when she is said to have indulged in sexual relationship with the petitioner. Thus, it is argued that the contention of the defacto complainant about extending consent for sexual relationship, believing the false promise of marriage allegedly given by the petitioner, is prima facie unsustainable.

6. The prosecution records would reveal that the petitioner and the defacto complainant maintained their relationship for a long period, and that the sexual relationship between them was the offshoot of their mutual intimacy. In such cases, it is well settled that the mere promise of marriage made by the petitioner itself, cannot be termed as a reason to accept the contention of the defacto complainant about the misconception of facts. When the defacto complainant is fully aware that she may not be able to have a lawful marriage with the petitioner, before dissolving her existing marriage with another person, she is not expected to extend her consent, believing the promise of marriage by the offender.

7. As far as the present case is concerned, it is not possible to say that the petitioner managed to obtain the consent of the defacto complainant by resorting to any acts of deceit.

8. The consent given by the prosecutrix to have 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. A false promise is not a fact within the meaning of the Code. A promise to marry without anything more will not give rise to misconception of fact within the meaning of Section 90 IPC. However, the position will be different if it is shown that the accused, with a view to elicit the assent of the victim, gave the false promise of marriage, without having the intenti