Consent in sexual relationships must be directly linked to a false promise of marriage for criminal liability to arise; bail is the rule, not the exception.

O R D E R

This Bail Application is filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita .

2. The petitioner is the accused in Crime No. 1142/2024 of Payyannur Police Station. The above case is registered against the petitioner alleging offences punishable under Sec. 69 of the Bharatiya Nyaya Sanhita, 2023 (for short 'BNS').

3. The prosecution case is that the accused by promising to marry the defacto complainant resided together as husband and wife and had sexual intercourse with her at his rented quarters at Thayineri, Payyannur on different dates from August 2019 to March 2024. It is also alleged that the victim consented for sexual relationship on a promise that the petitioner will marry her. Hence, it is alleged that the accused committed the offences. It is also alleged that, when the victim became pregnant, the petitioner-accused forced her to abort and gave medicines.

4. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

5. The counsel for the petitioner submitted that the admitted prosecution case is that from August 2019 to March 2024, the petitioner and the victim had sexual intercourse in a rented quarters. The counsel submitted that even if the entire allegations are accepted, the offence under Sec. 69 of the BNS is not attracted. The counsel submitted that the petitioner is ready to abide any conditions, if this Court grants him bail. The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the petitioner gave drugs to the victim for abortion and the sexual relationship was consented by the victim only because of the promise to marry.

6. This Court considered the contentions of the petitioner and the Public Prosecutor. The admitted prosecution case is that the victim is aged 31 and she is a married woman, but separated. She is having two children in her earlier marriage. The petitioner is aged 27. The prosecution case is that there was a promise from the petitioner that he will marry the victim and based on the promise, the victim permitted for sexual intercourse and it continued from August 2019 to March, 2024. The Apex Court in Mahesh Damu Khare v. State of Maharashtra and anr. [2024 LiveLaw SC 921] observed like this :

22. “In our view, if a man is accused of having sexual relationship by making a false promise of marriage and if he is to be held criminally liable, any such physical relationship must be traceable directly to the false promise made and not qualified by other circumstances or consideration. A woman may have reasons to have physical relationship other than the promise of marriage made by the man, such as personal liking for the male partner without insisting upon formal marital ties. Thus, in a situation where physical relationship is maintained for a prolonged period knowingly by the woman, it cannot be said with certainty that the said physical relationship was purely because of the alleged promise made by the appellant to marry her. Thus, unless it can be shown that the physical relationship was purely because of the promise of marriage, thereby having a direct nexus with the physical relationship without being influenced by any other consideration, it cannot be said that there was vitiation of consent under misconception of fact.

7. Keeping in mind the above principle, this Court once again perused the First Information Statement. I am of the considered opinion that this is a fit case, in which the petitioner can be released on bail, after imposing stringent conditions. The Public Prosecutor submitted that there is a chance for the petitioner leaving India. If that is the case, there can be a direction to the petitioner to surrender his passport before the investigating officer, at the time of surrender.

8. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in Chidambaram. P v Directorate of Enforcement [2019 (16) SCALE 870], after considering all the earlier