A consensual relationship based on a promise of marriage does not constitute rape unless established that the promise was made with malicious intent. Lack of intention to deceive precludes conviction.

ORDER

The accused in S.C No.802/2019 on the files of the Additional Sessions Court-IX, Thiruvananthapuram has filed this petition under Section 482 Cr.P.C to quash the proceedings against him in the said case. The allegation against the petitioner is that he committed the offences punishable under Sections 493 , 496 and 376 I.P.C .

2. The prosecution case is summarised as follows:

The de facto complainant/second respondent is a widow having a daughter and a son aged 18 years and 16 years respectively. Her husband died in the year 2013. During 2009, the petitioner befriended the de facto complainant by calling her over mobile phone and rendered financial assistance to her. While so, on a day in the year 2009, the petitioner came to the room which the de facto complainant was occupying at Kuzhithura in connection with her business of sale of ‘agarbathi’ and ‘olibanum’, and indulged in sexual relationship with her after making her believe that he would marry her. Thereafter, on 22.10.2013, the husband of the de facto complainant passed away. After the death of the husband of the de facto complainant, the petitioner resided along with the de facto complainant and her children and maintained the relationship with her. While so, the petitioner got employment as a Watcher in the Forest Department at Wayanad. Even thereafter, the petitioner used to come to the residence of the de facto complainant on leave and indulged in sexual relationship with her. When the de facto complainant insisted for the performance of a marriage, the petitioner tied a knot in the gold chain worn by her in front of a candle and lamp and made her believe that he had married her. The relationship between the petitioner and the de facto complainant went on for years. While so, the de facto complainant came to know that the petitioner had married another woman residing at Aryanad. When the de facto complainant questioned the petitioner about the aforesaid alliance, he replied that though he had married another lady, he considered the de facto complainant alone as his wife and continued physical relationship with her. On 01.11.2017, the de facto complainant had the occasion to talk with the lady whom the petitioner had married, over telephone. At that time, the de facto complainant had told that lady that even before the petitioner married her, he had tied the nuptial knot upon her neck and that both of them were living as husband and wife for a long period. However, the petitioner called the de facto complainant on 04.11.2017 and informed her that he does not want to continue the relationship with her and that she should not call him thereafter. Though the de facto complainant tried to contact the petitioner on several occasions thereafter, he did not care to respond. Though the de facto complainant came to the office of the petitioner at the place called Kattikulam, the petitioner did not care to accept her, and instead, shouted at her to leave from that place. Thus, the petitioner committed the aforesaid offences.

3. In the present petition, the petitioner would contend that none of the offences alleged in this case are legally sustainable. According to the petitioner, the consensual relationship between him and the de facto complainant will not constitute the offence of rape. He denied the accusation that he had offered to marry the de facto complainant.

4. Heard the learned counsel for the petitioner, the learned counsel for the second respondent / de facto complainant, and the learned Public Prosecutor representing the State of Kerala.

5. As regards the offences under Sections 493 and 496 I.P.C