Consent in consensual relationships cannot be construed as vitiated without evidence of intent to deceive or coerce.

J U D G M E N T

(Dated this the 14^th day of January, 2026)

The accused in S.C No.727 of 2019 on the file of the Fast Track Special Court, Aluva filed this petition being aggrieved by the order of the Special Court, Aluva dismissing his application for discharge. The offence alleged against the petitioner is under Sections 376 and 420 of IPC .

2. The prosecution case is that, the accused after promising to marry the de facto complainant, committed rape upon her in a room in DD Nest Flat Complex and in the apartment of the de facto complainant, on various dates and also received a sum of Rs.25 lakhs and thereby, he is alleged to have committed the aforesaid offences.

3. According to the learned counsel for the petitioner, even if all the allegations raised against the petitioner are believed, the same does not constitute the offence under Section 376 and 420 IPC . Therefore, it was argued that the learned Special Judge was not justified in dismissing his application for discharge. Therefore, he prayed for discharging the petition by allowing this Crl.M.C.

4. The petition was strongly opposed by the learned Public Prosecutor.

5. On a perusal of the FI statement, it is revealed that after the dissolution of marriage of the de facto complainant with her husband on 22.02.2017, she became friend of the petitioner through Facebook. While she was admitted to the hospital during the period from 05.05.2018 onwards, the petitioner was her bystander. At that time it was he who bathed her. On 22.06.2018, when she was discharged from the hospital, she had advanced a sum of Rs.30 lakhs to him. From 22.06.2018 onwards, they started residing together in the same flat. It was at the time, he allegedly committed rape on her on 09.07.2018, 12.07.2018 and on 20.07.2018. In the FI statement, she made it clear that she had not resisted, as the petitioner had promised to marry her. On 30.06.2018, she had advanced another sum Rs.5 lakhs to the petitioner. In the FI statement, it is stated that, thereafter, she saw the nude photographs of some ladies in the mobile phone of the petitioner and when she questioned the petitioner with regard to the same, the relationship between them became strained.

6. From the above averments in the FI statement itself, it can be seen that the relationship between the petitioner and the de facto complainant was a consensual one. In the FI statement, she has no case that the petitioner thereafter, refused to marry her. However, as per the FI statement, the relationship between them strained when she noticed certain nude photographs of ladies in the mobile phone of the petitioner.

7. Since, admittedly, the relationship of the petitioner with the de facto complainant was a consensual one, unless it is proved that, from the very beginning, the petitioner had no intention to marry the de facto complainant, it cannot be held that the consent was obtained due to any vitiating circumstance or that the consent was given on account of some misconception of facts. On the other hand, it is revealed that the relationship between the petitioner and the de facto complainant became strained when the de facto complainant found naked photographs of some ladies in the mobile phone of the petitioner.

8. In the above circumstances as argued by the learned counsel for the petitioner, the allegation against the petitioner does not constitute the offence under Section 376 IPC .

9. The learned counsel has produced Annexure-A1, a copy of the plaint showing that the de facto complainant has already filed a suit for realising the amount due from the petitioner. Moreover, from the allegations in the FI statement, it