A consensual sexual relationship on the pretext of a false promise of marriage to an already married woman cannot attract provisions of rape against the man under Section 376 of the Indian Penal Code, the Kerala High Court observed recently while quashing a rape case against a 25-year-old man. Tino Thankachan, a resident of Punaloor in Kollam, was charged under Sections 376 (rape), 417 (cheating) and 493 (deceitful inducement to sex).
According to the prosecution, Thankachan sexually assaulted a woman, married and separated from her husband, on the pretext of a false promise of marriage, on multiple occasions, amounting to rape.
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Pronouncing the verdict on November 22, Justice Kauser Edappagath held that the victim had sex voluntarily knowing full well that she cannot enter into a lawful marriage with the petitioner since she is a married woman.
“The promise alleged to have been made by the accused to a married woman that he could marry her is a promise which is not enforceable in law. Such an unenforceable and illegal promise cannot be a basis for the prosecution under Section 376 of IPC,” the judge said, adding that there are no ingredients to attract the offence of cheating either. “There is also nothing on record to attract the ingredients of Sections 417 and 493 of the IPC,” he added.
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The court further said that the consensual nature of the sexual intercourse was evident from the first information statement which states that the woman consented for sex persuaded by the petitioner’s promise of marriage.
“It is settled that if a man retracts his promise to marry a woman, consensual sex they had would not constitute an offence of rape under Section 376 of IPC unless it is established that consent for such sexual act was obtained by him, by giving false promise of marriage with no intention of being adhered to and that promise made was false to his knowledge,” the order read.
According to The Indian Express, the accused and the victim entered a relationship after meeting through Facebook in Australia. They decided to marry but the marriage never materialised. According to the woman, she consented to sex on the promise given by the petitioner that he would marry her, the IE report added.
