The Kerala High Court on Friday held that sexual intercourse between two consenting adults doesn’t indicate rape and shall not be covered under Section 376 of the IPC. If the consent was taken by fraudulent means or by force, only then can the offence of rape can be constituted, the HC observed.
The HC was hearing petitioner Navaneeth N Nath, a 29-year-old advocate who was arrested under Sections 376(2)(n) and 313 of IPC on June 23 after a complaint was filed against him for allegedly raping a woman lawyer several times for four years under the pretext of getting married to her, but instead, married someone else.
Granting bail to Nath, Justice Bechu Kurian Thomas said, “Even if a sexual relationship between two willing partners does not culminate in marriage, still the same will not amount to rape, in the absence of any factor that vitiates the consent for sex. A subsequent refusal to marry or a failure to lead the relationship into a marriage are not factors that are sufficient to constitute rape even if the partners had indulged in a physical relationship.”
The court further observed that indulging in sex without someone’s consent or will or by the use of force will amount to rape. Regarding whether refusal to marry after sex constitutes rape, the court further clarified that “only when the promise was given in bad faith or is vitiated by fraud or was not intended to be adhered to at the time of making it”.
“In order to convert a physical relationship between a man and a woman into rape due to the failure to abide by the promise of marriage, it is essential that the decision of the woman to engage in the sexual act must be based on the promise of marriage. To establish a false promise, the maker of the promise should have had no intention to uphold his word at the time of making it and the said promise should have induced the woman to submit herself to the physical relationship. There must be a direct nexus between the physical union and the promise of marriage,’’ said the judge.