A consensual relationship does not constitute rape without deceitful intent regarding marriage promises.

O R D E R

The accused in S.C. No.488/2020 on the files of the Additional Sessions Court-II, North Pavavur, has filed this petition under Section 482 of the Code of Criminal Procedure , 1973, to quash the proceedings against him in the said case. The allegation against the petitioner is that he committed the offence punishable under Section 376 (2)(n) of the Indian Penal Code , 1860.

2. The prosecution case is that the petitioner resorted to sexual exploitation of the de facto complainant by indulging in sexual relationship with her during the period from 29.12.2018 till the month of October, 2019, while she was residing along with him, believing his promise of marriage. It is stated that the de facto complainant, who is a divorcee having two children, got acquainted with the petitioner through a matrimonial advertisement, and that thereafter, the family members of both the parties had resolved to conduct their marriage. However, the de facto complainant would allege that the petitioner retracted from the promise of marriage from the month of October, 2019 onwards. Thus, it is alleged that the sexual intercourse between the petitioner and the de facto complainant during the period of their cohabitation would amount to rape.

3. The case has been registered by the North Paravur Police on

14.12.2019 on the basis of the First Information Statement given by the de facto complainant. After the completion of the investigation, the Inspector of Police North Paravur, laid the final report before the Court.

4. In the present petition, the petitioner would contend that he is totally innocent, and that he has been falsely implicated in this case. It is further stated that even if the allegation of sexual relationship between the petitioner and the de facto complainant is admitted, still it would not amount to rape since it was consensual.

5. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala.

6. Admittedly, the sexual relationship between the petitioner and the de facto complainant took place during the period from 29.12.2018 till the month of October, 2019, while the de facto complainant was residing along with the petitioner at his house pursuant to their decision to get married. Even the First Information Statement of the de facto complainant would make it clear that the family members of the de facto complainant and the petitioner had also taken the decision to conduct their marriage. According to the de facto complainant, she started residing with the petitioner at his house even before taking any steps for the solemnization of their marriage, and their relationship was akin to the relationship between spouses. Therefore, it is apparent that the above sexual relationship between the de facto complainant and the petitioner would amount to rape if only it is shown that the consent given by the de facto complainant for sexual relationship was vitiated due to fear of injury or misconception of fact. In a complaint alleging rape on false promsie of marraige, the primary requirement to be fulfilled is that there should be materials to show that right from the very beginning the offender had no intention to marry the survivor, and that the offer of marriage was given as a ploy with the deceitful motive to make the survivor surrender herself to him for the performance of the sexual acts. As far as the present case is concerned, it is not possible to discern from the prosecution records that the petitioner was having such a deceitful intention at the time when he maintained relationship with the de facto complainant. According to the petitioner, his marriage with the de facto complainant did not materialise since the de facto complainant was found to have suppressed the serious lung disease which