Promise of marriage made to a married woman cannot become a basis for rape under Section 376 of IPC

The Kerala High Court on Tuesday acquitted a man facing rape charges saying if a man’s promise to marry an already married woman and subsequent physical relations between them will not attract provisions of rape under Section 376 of the Indian Penal Code (IPC).

The bench of Justice Kauser Edappagath made the observation on November 22 while quashing a rape case registered against 25-year-old Tino Thankachan, a resident of Punaloor in Kollam, under Sections 376 (rape), 417 (cheating) and 493 (deceitful inducement to sex) of IPC.

According to the prosecution, the petitioner-accused sexually assaulted the the victim on several occasions in Australia after giving her a false promise of marriage. Though married, the woman was separated from her husband and divorce proceedings were also going on.

The woman in her statement to police said she had consented for the sexual relationship on being persuaded by the promise of marriage given by the petitioner.

“Though in the F.I.S. it is stated that the petitioner forced her to have sexual intercourse with him, on the entire reading of the F.I.S., it is evident that the sexual intercourse was consensual in nature. As stated already, her case is that she consented for sex persuaded by the promise of marriage given by the petitioner,” said the court.

The court further said that it is settled that that, if a man retracts his promise to marry a woman, consensual sex they had would not constitute an offence under Section 376 of IPC unless it is established that consent for such sexual act was obtained by him, by giving false promise of marriage with no intention of being adhered to and that promise made was false to his knowledge.

However, it added no question of promise to marry would arise in the case since the victim is a married woman who knew that legal marriage with the petitioner was not possible under the law.