Kerala High Court said a married woman cannot claim rape based on false promise of marriage. Each such case must be judged on its unique facts, the Court added.
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KOCHI: The Kerala High Court said that if a woman is already married, she cannot say that she was forced into a sexual relationship because the man falsely promised to marry her.
But the Court also explained that every case of rape or sexual relation based on fake promises of marriage should be judged by looking at the full facts of that particular situation.
“It is observed that while considering the cases alleging rape on the basis of the promise of marriage, it is difficult for this Court at this juncture to enter into a conclusion regarding whether the relationship was consensual or not. The entire circumstances will have to be taken into consideration especially when a married lady enters into a physical relationship with another person. If both of the parties are aware about a subsistent marriage it cannot be alleged that the sexual intercourse between them was with a promise to marry,”
-the Court said clearly in its order.
This observation came while the Court was hearing the bail request of a man who was booked under Section 84 (enticing or taking away a married woman with criminal intention) and Section 69 (sexual intercourse by deceitful means) of the new Bharatiya Nyaya Sanhita (BNS).
Under Section 69, having sex with someone by lying about marrying them is a punishable crime that can lead to 10 years in jail.
The police had accused the man of having sex with a woman after lying to her that he would marry her. He was also accused of taking Rs 2.5 lakh from her and then threatening to leak her private photos and videos.
The man was arrested on June 13 and has been in jail since then.
His lawyers said that all the accusations were false. They claimed that the woman brought up the rape case only because of a money dispute. According to the defense, she made up the false promise of marriage only to pressurize the man into paying her back.
The Court pointed out that, based on earlier decisions given under the now removed Section 376 of the Indian Penal Code (IPC), no one can claim there was a real promise of marriage if either of them is already married.
Since in this case, the woman is already married, the Court said it is “prima facie doubtful” whether the charges under Section 69 of the BNS would apply.
The Court also said that the second charge under Section 84 of the BNS is a bailable offence, meaning the accused can get bail easily.
Taking all these facts into account, the High Court granted bail to the accused man.
What Is Section 376 of the Indian Penal Code (Now Removed)?
Section 376 of the Indian Penal Code (IPC) prescribes the punishment for the offence of rape.
Basic Provision:
Any man who commits rape shall be punished with rigorous imprisonment for a term not less than 10 years, which may extend to life imprisonment (meaning imprisonment for the remainder of the person’s natural life), and shall also be liable to pay a fine.
Key Points:
- A man is said to commit rape under Section 375 IPC (now repealed) if he engages in sexual intercourse with a woman:
- Against her will,
- Without her consent,
- By threatening her or someone she cares about,
- By impersonating her husband,
- When she is unable to give valid consent due to intoxication, mental disability, or being under 18 years of age.
- Section 376(2) provides enhanced punishment in aggravated circumstances, such as:
- When the offender is a police officer, public servant, or in a position of trust or authority,
- When the rape is committed during communal or sectarian violence,
- When the victim is pregnant, disabled, or under lawful custody,
- When the victim is under 12 years of age.
Repeal and Replacement:
With the introduction of the Bharatiya Nyaya Sanhita (BNS), 2023, Section 376 IPC has been repealed. The equivalent provision now exists under Section 63 of the BNS, which carries similar punishment and definitions with some modifications.
Courts still refer to Section 376 IPC when dealing with offences committed before the BNS came into force or when interpreting past precedents.
The accused was represented in court by Advocates Ameen Hassan K and Rebin Vincent Gralan.
Public Prosecutor Noushad KA argued on behalf of the State.
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