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2025 Supreme(Online)(Ker) 16191
IN THE HIGH COURT OF KERALA AT ERNAKULAM
G. GIRISH, J
KIRAN N.S. – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 6119/2024
SRI.SATHEESH MOHANAN, SRI.V.S.THOSHIN, SRI.AKHIL SUSEENDRAN, SHRI.SEKHAR G. THAMPI, SHRI.SREEJITH S. NAIR, SMT.MAHIMA, SRI G.SUDHEER
Consent given freely in a relationship does not constitute rape, even if the marriage proposal collapses due to external factors.
Headnote:(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 528 - Indian Penal Code, 1860 - Sections 376, 354A, 354B, and 509 - Petition to quash FIR for alleged rape and related offences - Accused contended that the alleged acts were consensual and that the marriage proposal collapsed due to family differences, not his actions - De facto complainant filed an affidavit stating the matter was amicably settled and she was not interested in proceeding with the case. (Paras 1-6)
(B) Consent - The court found that the sexual relationship was consensual and not obtained through fraud or misconception, thus not amounting to rape. (Paras 6-7)
(C) Evidence - The scientific analysis of mobile phones did not support the prosecution's case. (Para 7)
Findings of Court:
The court concluded that the charges against the petitioner were not substantiated by evidence and allowed the petition to quash the FIR.
Issues: The main issues were whether the alleged sexual acts constituted rape and whether the consent was valid.
Ratio Decidendi: The court ruled that the consent was given freely and that the collapse of the marriage proposal did not retroactively invalidate the consent.
Result: Petition allowed.
ORDER
The accused in Crime No.669/2021 of the Udayamperoor Police Station has filed this petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita , 2023 to quash the FIR registered in that crime as well as the further proceedings initiated thereafter against him. The offence alleged are under Sections 376 , 354A, 354B and 509 I.P.C.
2. The prosecution case is that the accused committed rape of the de facto complainant, who was proposed to be married to him, in the afternoon of 13.08.2021 in a hotel room at Aluva. It is stated that the petitioner got acquainted with the de facto complainant through an online matrimonial site, and that their engagement for marriage was conducted on 20.08.2021. The accused allegedly compelled the de facto complainant to expose her nudity during video calls, and displayed his naked body to her immediately after their familiarity which arose out of the marriage proposal. It is thereafter that the accused allegedly took the de facto complainant to the hotel room just a week prior to their marriage engagement. However, after the marriage engagement function, the accused and his relatives retracted from the marriage proposal, and refused to co-operate with the de facto complainant and her relatives to proceed further for the solemnisation of marriage. It is upon the above premises that the offences under the aforesaid Sections are slapped upon the petitioner.
3. In the present petition, the petitioner would contend that the offence alleged against him are not attracted in the facts and circumstances of the case. It is stated that even as per the prosecution case, it is not possible to say that there was sexual intercourse between the petitioner and the de facto complainant. It is also stated that the prosecution records would reveal that whatever happened on 13.08.2021 were with the full consent of the de facto complainant. Another contention raised by the petitioner is that the issue involved in this case has been amicably settled with the de facto complainant, and that she has filed an affidavit in that regard.
4. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala.
5. The de facto complainant has filed an affidavit before this Court stating that the marriage between the petitioner and the de facto complainant did not materialise due to the difference of opinion developed in the families due to disparity in the status of both families. She further stated in the aforesaid affidavit that the accused and herself had settled the matter out of court, and hence she is not interested to proceed further with the case.
6. The affidavit filed by the de facto complainant in the above regard could be relied on for the limited purpose of ascertaining the reason why the proposal of marriage of the petitioner with the de facto complainant failed. It is apparent from the averments in the said affidavit that the proposal of marriage between the petitioner and the de facto complainant collapsed not due to any act or decision on the part of the petitioner. Therefore, it cannot be said that at the time when the petitioner and the de facto complainant had sexual indulgence on 13.08.2021, the petitioner was not having the intention to marry her. Thus, the consent which he procured from the de facto complainant on that day to have sexual relationship with the de facto complainant cannot be said to be one obtained due to fraud or misconception of facts. Needless to say that, the promiscuity which the de facto complainant had with the petitioner on 13.08.2021 was with her full consent. The mere fact that after the engagement of marriage, the relatives of the petitioner and the de facto complainant happened to be at loggerheads leading to the collapse of the marriage proposal, does not mean that the sexual intercourse which the petitioner had with the de facto complainant on 13.08.2021 would amount to rape.
7. As regards the other allegations pertaining to the
