Prima Facie Materials Show That Prosecutrix Was Subjected To Sexual Intercourse On Promise Of Marriage Without Any Bona Fides: Kerala HC Refuses To Quash Rape Case

The Kerala High Court refused to quash a rape case observing that prima facie materials show that the prosecutrix was subjected to sexual intercourse on the promise of marriage without any bona fides.

In that context, the Bench of Justice A Badharudeen observed that, "no doubt, the question to be considered by a court while considering quashment of the proceedings is, whether at the very inception there is mutual consent to have sexual intercourse or the same is under a misconception of fact, on the promise of marriage or otherwise. But the said aspect depends on the facts of each case. So, no hard and fast rule to be applied to almost all cases similarly."

In this case, the prosecution alleged that the accused promised to marry the complainant, had sexual intercourse with her starting from June 2012, resulting in her pregnancy and the birth of a child, and thus committed an offence under Section 376 of the Indian Penal Code (IPC).

The petitioner’s counsel argued that the allegations were false and, even if taken at face value, did not constitute an offence under Section 376 IPC. They pointed out that the complainant had previously married another man by exchanging garlands and had a child with him, making the claim of intercourse based on a marriage promise unbelievable.

The Public Prosecutor opposed the quashment, stating that the accused promised to marry the complainant, knowing about her previous relationship, and had sexual relations with her, leading to pregnancy. The accused then compelled her to abort the fetus, and although they initiated steps for a registered marriage, he later retracted. The Public Prosecutor argued that the issue required a trial.

The Court reviewed the complainant's First Information Statement (F.I.S.), which detailed her education, previous relationship, and child born out of that relationship. After her previous partner left, the accused promised to marry her, maintained a relationship, and she became pregnant. Despite initially agreeing to marry her and even being present at the hospital during the child's birth, the accused did not follow through with the marriage. He even incorrectly listed the previous partner as the child's father on the birth application form and later refused to correct it without a marriage certificate. The complainant filed a complaint in October 2023 when the accused failed to fulfil his marriage promise.

The Court observed that, "when, prima facie, materials would show that the prosecutrix was subjected to sexual intercourse on the promise of marriage without any bona fides under a misconception of fact, then the consent is vitiated. If the materials would show that the relationship is purely consensual without an element of misconception of fact, the same is not rape."

The Court held that whether the relationship was based on a misconception of fact due to the promise of marriage is a matter to be decided during the evidence stage of the trial. The Court observed that the prosecution's allegations were made prima facie, and therefore, it could not quash the proceedings at this stage. 

As a result, the petition for quashing the proceedings was dismissed. The court granted the petitioner the liberty to raise his contentions before the trial court during the trial. 

Cause Title: XXXXXXXXXX vs The State of Kerala & Ors. (Neutral Citation: 2024:KER:58907)

Click here to read/download the Judgment