The consent for sex obtained by a promise to marry will amount to rape only if the promise was given in bad faith or was vitiated by fraud or was not intended to be adhered to at the time of making it, the Kerala High Court has clarified.
Issuing bail to a lawyer who has been booked on charges of raping a woman lawyer after promising to marry her and thereafter backing out from the promise, Justice Bechu Kurian Thomas noted that even if a sexual relationship between two willing partners did not culminate in marriage, it would not amount to rape in the absence of any factor that vitiated the consent for sex.
The judge noted that a subsequent refusal to marry or a failure to lead the relationship into marriage were not factors that were sufficient to constitute rape even if the partners had indulged in a physical relationship. “The sexual relationship between a man and a woman can amount to rape only if it is against her will or without her consent or when consent is obtained by force or fraud,” the court held.
For a physical relationship between a man and a woman to be considered as rape due to the failure to abide by the promise of marriage, it was essential that the decision of the woman to engage in the sexual act was based on the promise of marriage. A sexual relationship between two willing adult partners would not amount to rape coming within the purview of Section 376 of the Indian Penal Code unless the consent for sex was obtained by a fraudulent act or misrepresentation, the court held.
To establish a false promise, the court held that the maker of the promise should have had no intention to uphold his word at the time of making it and the said promise should have induced the woman to submit herself to the physical relationship. There must be a direct nexus between the physical union and the promise of marriage. The Supreme Court had earlier laid down the aforesaid principles in a case, the court held.
