Kochi, May 29 (PTI) The Kerala High Court has allowed a petition seeking to quash a rape case on the ground that the parties have compromised and that the petitioner has married the victim.
The man, the petitioner, was the accused in a case filed in the Court of the Judicial First Class Magistrate-1, Pathanamthitta.
He was accused of committing an offence punishable under Section 376 (rape) of the Indian Penal Code.
Quashing the rape case, Justice R Narayana Pisharadi in his recent judgement observed the circumstances of the case would show that the woman had given consent for intercourse on the promise made by the petitioner that he would marry her.
"In fact, she has given a statement to the police to that effect. The petitioner had no fraudulent intention in making the promise that he would marry the first respondent.
The promise made by him to marry the prosecutrix was not a false promise made only with the intention to satisfy his lust.
"This is evident from the fact that he married the victim within a short period after the incident. It is a marriage solemnised under the Special Marriage Act, 1954 and not merely a registration of marriage under Section 15 of that Act," the High Court said in its order.
In such circumstances, it has to be found that what occurred was only acknowledged consensual physical relationship between the parties, the court said.
The court further observed that in this factual scenario, prosecution of the petitioner for committing an offence of rape would be an abuse of the process of the court.
"Continuation of the prosecution will cause embarrassment to the couple and it would create discord in their happy matrimonial life. Even if the prosecution against the petitioner is continued, prospects of an ultimate conviction is remote and bleak," the court said while quashing the case, exercising its power under Section 482 of the Code of Criminal Procedure.
Quoting various judgements by the Supreme Court in such cases, the verdict said there is a clear distinction between rape and consensual sex.
The court, in such cases, must very carefully examine whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise of marriage only to satisfy his lust.
If the accused has not made the promise with the sole intention to seduce the prosecutrix (victim) to indulge in sexual acts, such an act would not amount to rape, it said.
The Court said there may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do.
"If the accused had any mala fide intention and if he had clandestine motives, it is a clear case of rape," it said.
If it is found that from the inception the accused who gave the promise to the prosecutrix to marry did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 IPC (consent known to be given under fear or misconception).
But, acknowledged consensual physical relationship between the parties would not constitute an offence punishable under Section 376 of the Indian Penal Code, the court said.
