A consensual relationship cannot constitute rape under IPC when one party is married, negating the premise of misconception of fact.

G. GIRISH, J.

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Crl.Rev.Pet.No.703 of 2023 ------------------------------------

Dated this the 11^th day of February, 2026

ORDER

The accused in S.C.No.900 of 2018 on the files of the Additional Sessions Judge - II, North Paravur, has filed this revision petition against the order dated 27.05.2023 of the said court dismissing the petition filed by him for discharge from the criminal prosecution in the aforesaid case.

2. The allegation against the petitioner is that he committed the offences punishable under Sections 376 , 316, 419 and 420 IPC . It is stated that the petitioner, while he was working as the Assistant Vicar in a church, indulged in sexual relationship with the defacto complainant during the period 16.02.2008 to 07.03.2009, giving the false promise of marriage to her. The aforesaid relationship is said to have continued on two occasions in the year 2012 and 2013 as well. It is the further allegation against the petitioner that he took the defacto complainant to a hospital, and got her pregnancy aborted by impersonating himself as her husband before the hospital authorities. Thus, the petitioner is alleged to have committed the aforesaid offences.

3. By Annexure A7 - order, the learned Additional Sessions Judge - II, North Paravur, dismissed the petition filed by the petitioner for discharge stating the reason that if two views are equally possible at the stage of framing of charges, which give rise to suspicion about the commission of the offence, then the court has to take a view that the accused has committed the offence as alleged by the prosecution. According to the petitioner, the aforesaid observation of the Trial Court is erroneous since the prosecution records do not reveal any of the offences alleged against him.

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

5. Admittedly, the defacto complainant is a married lady having two children, and she indulged in sexual relationship with the petitioner for a period extending to more than five years with full consent. The contention of the defacto complainant that she was under the belief that the petitioner would marry her, cannot be accepted since her marital status was that of a married lady having two children born in the wedlock with her husband. By no stretch of imagination could it be said that her consent for the sexual relationship was vitiated due to misconception of fact or fear of injury due to any act on the part of the petitioner. The defacto complainant cannot be expected to be under the belief that the petitioner would marry her after the dissolution of her subsisting marriage with another man. Thus, it has to be concluded that the sexual relationship of the petitioner with the defacto complainant cannot be termed as one amounting to rape. So also, the contention of the defacto complainant that the petitioner had pretended as her husband for carrying out the abortion of her pregnancy, cannot be accepted since it is apparent from the case records that the aforesaid abortion was done voluntarily with the full consent of the defacto complainant. The Final Report and the accompanying records are not sufficient to bring home the commission of any offence of impersonation or cheating by the petitioner in connection with the aforesaid abortion of the pregnancy of the defacto complainant. Thus, it has to be stated that the offences alleged against the petitioner are prima facie not attracted even if the entire accusations in the prosecution records are accepted as such. In that view of the matter, it is highly necessary to terminate the prosecution proceedings against the petitioner.

In the result, th