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2023 Supreme(Online)(KER) 5157
HIGH COURT OF KERALA
Kauser Edappagath, J
...... – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 3729/2022
AYYAPPAN SANKAR, S.HRIDYA, S.R.SREEJITH SHARATHPARAMBIL RAJAN, C.N. PRABHAKARAN, SR.PP
An unenforceable promise of marriage to a married woman does not constitute sexual assault under IPC Section 376.
Headnote:
Criminal - Quashing of Proceedings - IPC Section List - The court quashed proceedings under IPC Sections 450 and 376(2)(n), interpreting that the promise of marriage made to a married woman is unenforceable legally, thus not constituting sexual assault under the mentioned section.
Fact of the Case:
The petitioner, accused of sexual assault under IPC Sections 450 and 376(2)(n), allegedly promised marriage to the victim and assaulted her. The dispute was amicably settled, with the victim deciding not to pursue the case further.
Issues: Determination of whether the allegations against the petitioner under IPC Sections 450 and 376(2)(n) could proceed given that the matter was settled amicably between the parties.
Ratio Decidendi: The court ruled that an unenforceable promise of marriage cannot ground a charge of rape. Hence, the facts did not satisfy the legal requirements of Section 376.
Final Decision: Proceedings quashed against the petitioner.
O R D E R
Dated this the 11th day of January, 2023 This Crl.M.C has been filed to quash all further proceedings pursuant to Annexure 3 final report in C.P.No.13/2022 on the file of the Judicial First Class Magistrate Court-I, Varkala.
2. The petitioner is the accused. The 3rd respondent is the victim. The offences alleged against the petitioner are punishable under Sections 450 and 376(2)(n) of IPC .
3. The prosecution case in short is that, the petitioner, after giving a false promise of marriage, sexually assaulted the 3rd respondent on several occasions by trespassing into her house and thereby committed the offences.
4. I have heard Sri. Ayyappan Sankar, the learned counsel for the petitioner and Sri. C.N. Prabhakaran, the learned Senior Public Prosecutor.
5. The averments in the petition as well as the affidavit sworn in by the 3rd respondent would show that the entire dispute between the parties has been amicably settled and the defacto complainant has decided not to proceed with the criminal proceedings any further. That apart, going by the allegations in the FIS, the offence under Section 376 (2)(n) of the IPC is not attracted. A reading of the FIS would show that both the petitioner and the 3rd respondent are married. The FIS would further show that both of them voluntarily had sex on number of occasions. But, according to the 3rd respondent, it was persuaded by the promise of marriage given by the petitioner that she consented for sex and the consent was vitiated by false promise of marriage.
6. This Court has held inXXX v.State of Kerala (2022 KHC 296) 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. Such an unenforceable and illegal promise cannot be a basis for the prosecution under Section 376 of IPC . Thus, the ingredients of of are not attracted. That apart, the matter has been settled between the parties.
Hence, all further proceedings pursuant to Annexure 3 final report in C.P.No.13/2022 on the file of the Judicial First Class Magistrate Court-I, Varkala hereby stands quashed. The Crl.M.C is allowed.
