The court ruled that a consensual relationship does not constitute rape unless a false promise to marry is proven to be made in bad faith.

ORDER

The application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ( in short, BNSS ), for an order of pre-arrest bail.

2. The petitioner is the accused in Crime No.795/2024 of the Gandhinagar Police Station, Kottayam, which is registered against him for allegedly committing the offence punishable under Section 376 (2)(n) of the Indian Penal Code, 1860 .

3. The prosecution allegation is that; the accused was conducting an establishment named “Key’s and Strings the Music and Dance Academy”. The survivor started working in the said establishment as an office staff. The accused after giving a false promise to marry the survivor, had sexual intercourse with her. When the survivor turned pregnant, the accused withdrew from his promise. Thus, the accused has committed the above offence.

4. Heard; Sri.S.A Anand, the learned counsel appearing for the petitioner, Smt.Seetha S. the learned Senior Public Prosecutor and Sri. K. Rajesh Kannan, the learned counsel appearing for the second respondent/ survivor.

5. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations leveled against him. There is no material to substantiate the petitioner’s culpability in the crime. The survivor was working in the petitioner’s establishment in 2020. The petitioner is married and has a son. The martial relationship between the petitioner and his wife got strained. It is on knowing about the strained relationship, in April 2023, the survivor approached the petitioner and expressed her desire to live with him. Accordingly, the parties entered into Annexure A agreement and started living together. The survivor’s family was against their relationship. Accordingly, the survivor’s sister’s husband filed a complaint and Annexure D Crime No.829/2024 was registered by the Kottayam West Police Station under Section 57 of the Kerala Police Act . On coming to learn about the crime, the survivor approached the police and told them that she was living with the petitioner on her own volition. She gave a similar statement before the jurisdictional Magistrate. As demanded by the survivor, the petitioner took a house on lease for her. The police filed Annexure C final report in the above crime and the case was closed. In due course of time, the survivor started making unlawful demands, including money, to the petitioner. On 19.06.2024, the survivor left the petitioner’s company and started living with her friend named Shamna. It is at her instigation that the present crime is registered. The petitioner and the survivor had a consensual relationship. It is only because the petitioner’s marriage was subsisting, he could not marry the survivor. The allegation that the petitioner had sexual intercourse with the survivor on the false promise of marriage is totally incorrect. The petitioner is a law abiding citizen without any criminal antecedents. The petitioner is willing to comply with any condition that may be imposed by this Court, and also co-operate with the Investigating Officer. Hence, the application may be allowed.

6. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that if the petitioner is granted an order of pre-arrest bail, there is every likelihood of him tampering with evidence and intimidating the witnesses. Hence, the application may be dismissed.

7. The learned counsel for the second respondent/survivor also opposed the appl