The Kerala High Court granted anticipatory bail to a 27-year-old rape accused, observing that the complaint showed signs of a consensual relationship. The Court said, “Failed consensual relationship is not a ground to allege rape.”
The Kerala High Court granted anticipatory bail to a 27-year-old man accused of rape, noting that the complainant’s statement suggested a prima facie consensual relationship.
Justice Bechu Kurian Thomas remarked that arrest and remand should not be misused as punitive measures in cases where a romantic relationship takes a turn for the worse and allegations of rape arise.
The judge stated,
“Courts must be cautious when two young people enter into a willing physical relationship and later rape is attributed to their union. Refusing bail blindly in such cases, without considering the circumstances, can lead to injustice and destroy the young personality. Arrest and remand being a curtailment of the cherished liberty of a person, it must be resorted to only if the circumstances warrant such a course to be adopted,”
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The Court concluded that invoking criminal law under the charge of rape in these circumstances was inappropriate.
The Court asserted,
“Merely because a consensual relationship turned sour at a later point of time, it cannot be a reason to allege rape. Further, there cannot be a case of deceitfully obtaining consent under a false promise of marriage as the de facto complainant is still in a subsisting marriage. Since prima facie I am satisfied that the statement given by the de facto complainant does not indicate an instance of rape stricto senso, petitioner ought to be protected with an order of pre-arrest bail,”
The petitioner faced charges under Section 64(1) (punishment for rape) of the Bharatiya Nyaya Sanhita (BNS) for allegedly raping a married woman, who is also a third-year medical student, in a hotel room near Thamarassery on November 3 and 4, 2024. The First Information Report (FIR) was filed five months after the alleged incident.
The anticipatory bail application was submitted concerning the crime registered at the Thamarassery Police Station, where the petitioner was accused of non-consensual sexual intercourse with the complainant.
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The defense argued that the allegations were fabricated and stemmed from a consensual relationship that had soured over time.
Upon reviewing the woman’s First Information Statement (FIS) and the FIR, the Court observed that her own account indicated that she willingly traveled, stayed with the petitioner, and maintained contact with him through social media platforms like Instagram and Snapchat.
The Court also noted that it could not be considered a case of deceit in forming the relationship based on a false promise of marriage since she was already married at that time.
Emphasizing that there was no prima facie indication of rape due to the consensual nature of the relationship, the Court concluded,
“When a married lady, on her own volition travelled all the way from Thiruvananthapuram to Kozhikode and willingly stayed with the petitioner in different lodges, that too for two nights, it cannot be assumed that the physical relationship between them was without her consent,”
The Court highlighted the importance of judicial caution in addressing such false allegations, particularly when young individuals are involved in romantic relationships that end negatively.
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Given the prosecution’s inability to justify the need for custodial interrogation, the Court approved the bail application with stringent conditions, including mandatory appearances before the Investigating Officer for limited interrogation and a prohibition against contacting the complainant or tampering with evidence.
Advocates P Abdul Nishad, Najma Thabsheera T, KC Mohamed Rashid, and Ajisha MS represented the petitioner, while Public Prosecutor Sreeja V represented the State.
Case Title: XXXXX v State of Kerala & anr
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