In a recent case of Tino Thankachan v. State of Kerala, the Kerala High Court held that refusal to marry an already married woman post-consensual sex does not constitute rape under Sections 376, 417, and 493 of IPC.
The single-judge bench comprising Justice Kauser Edappagath dealt with the petition filed to quash all further proceedings against the petitioner. The facts of the case were that the petitioner was in a physical relationship with an already-married woman. He assaulted the woman/victim on several occasions in India and Australia. Moreover, he repeatedly promised to marry her when she was only separated from her partner, and their divorce proceedings were still going on. According to the prosecution’s lawyer, Sri Sangeetha Raj, when the accused/petitioner retracted his promise of marriage, the woman filed charges of rape and sexual assault against the man, a native of Kollam in Kerala. He contended that the petitioner didn’t give any false promise of marriage without any intention of adhering to the same, but he retracted his promise later.
The counsel for the petitioner, Adv. Mahesh V Ramakrishnan argued before the court that it could be inferred from the detailed statement of the petitioner that the sexual relationship was purely consensual. Hence, no offence should be attracted against the accused.
Finally, Justice Kauser passed the order allowing the petition and quashing the rape charges against the accused. He observed that since the woman already knew that the marriage was an invalid/illegal one in the first place, if possible. Besides, there are no elements that draw the cheating offence. He took note of the case of XXX v. State of Kerala, where it was ruled that “the promise alleged to have been made by the accused to a married woman that he could marry her is a promise which is not enforceable in law. Such an unenforceable and illegal promise cannot be a basis for prosecution under Section 376 of IPC. Here, no question of promise to marry arise, since the victim is a married woman and she knew that legal marriage with the petitioner was not possible under the law.”
Hence, it was held that retracting the promise of marriage to an already married woman after having consensual intercourse does not amount to rape under the Indian Penal Code unless it turns out the consent was obtained fraudulently through coercion, undue influence, misrepresentation, or mistake.