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2023 Supreme(Online)(KER) 18941
HIGH COURT OF KERALA
V. G. Arun, J
MUHAMMED ANSAR – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 327 2023
SRUTHY N. BHAT, P.M.RAFIQ, M.REVIKRISHNAN, AJEESH K.SASI, RAHUL SUNIL, SRUTHY K.K, NIKITA J. MENDEZ
Consent induced by a genuine relationship cannot be categorized as rape; only false promises made with intent to deceive invalidate consent.
Headnote:
Bail - Rape and Consent - IPC Sections 366, 376(2)(n), 506; IT Act Section 66-E; SC/ST Act Sections 3(2)(v), 3(2)(va) - The court examined consent in the context of a promise of marriage and established that a mere breach of promise does not constitute rape when both parties engaged consensually.
Fact of the Case:
The appellant faced allegations of rape and related offences after a consensual relationship with the complainant. The appellant was accused of using a false promise of marriage to secure consent for sexual activity, alongside threats related to private videos.
Finding of the Court:
The court found insufficient evidence to establish that the promise of marriage was intended to deceive the complainant into consent. The relationship was treated as consensual without evidence of mala fide intent from the appellant.
Issues: Whether the appellant's actions constituted rape by promising marriage and if the arrest was justified based on the provided evidence.
Ratio Decidendi: A promise of marriage must be made with intention to deceive for consent to be invalidated. Consensual relationships do not amount to offences unless proven otherwise.
Final Decision: The appeal was allowed, and the appellant was granted bail.
JUDGMENT
Dated this the 17th day of March, 2023 The appellant is the accused in Crime No. 137 of 2023 registered at the Changaramkulam Police Station for the offences under Sections 366 , 376(2)(n) and 506 of IPC and Section 66-E of the Information Technology Act and Sections 3 (2)(v) and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act . The crime is registered based on the 2nd respondent's complaint that, the appellant had committed rape on her on a day in May, 2017 and thereafter on three or five other occasions, by securing the 2nd respondent's consent on false promise of marriage. Further, the appellant also compelled her to take nude videos during their conversation over mobile phone and threatened to circulate the videos. The appellant later retracted from the promise and his marriage as fixed with a girl from his own community. All these acts were committed by the appellant, a Muslim, knowing fully well that the petitioner belongs to Scheduled Caste. The appellant was arrested on 08.02.2023 and his application for bail stands dismissed by the impugned order.
2. Learned Counsel for the appellant contended that, even going by the version of the 2nd respondent, it is evident that the appellant and the 2nd respondent were in love from 2017 onwards and were having a consensual sexual relationship. There is allegation that the appellant had given promise of marriage solely for the purpose of securing her consent for sex or that the alleged offences were committed by the appellant with the knowledge that the 2nd respondent belongs to Scheduled Caste. Reliance is placed on the decisions inMandar Deepak Pawar v. The State of Maharashtra (2022 LiveLaw (SC) 649) and Prithvi Raj Chauhan v. Union of India ( AIR 2020 SC 1036 ,) to contend that every consensual act of sex on a promise to marry does not amount to rape. It is pointed out that the appellant was arrested on 08.02.2023 on the eve of his marriage and the sudden arrest of the appellant has resulted in his father suffering a cardiac arrest. It is submitted that there is no justification in the continued incarceration of the appellant, even after completion of the investigation.
3. Learned Public Prosecutor made available the Case Diary and submitted that the statement of the 2nd respondent gives sufficient indication that the appellant had committed the alleged offences.
4. Despite service of notice through the SHO concerned, the 2nd respondent has not entered appearance.
5. Having carefully gone through the statement of the complainant, I find prima facie substance in the contention that the 2nd respondent has not specifically stated that she was enticed by the appellant into having sex with her on a false promise of marriage. The statement shows that the appellant and the 2nd respondent were friends from school days and had met again after long years when the appellant joined for Engineering in a College in Coimbatore where the 2nd respondent was residing and studying for Degree course. Their friendship blossomed into love and on the appellant's invitation, the 2nd respondent travelled on his bike to Malappuram, the appellant's native place. They allegedly had sex at the residence of one of appellant's relatives. The affair continued upto 2022 and indulged in sexual intercourse a few more times. In between the appellant secured employment abroad. He later sought the permission of his parents to marry the 2nd respondent. The proposal was not only opposed by the appellant's parents but they even threatened the relatives of the 2nd respondent.
6. Based on the above facts and circumstances, I find it difficult to hold the initial promise of marriage to have been made with the intention of inducing the 2nd respondent to have sex with him. As held inDeelip Singh @ Dilip Kumar v. State of Bihar [ (2005) 1 SCC 88 ], consent given by a woman believing the man's promise to marry her would fall within the expression 'without her consent' only if it i
