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The Kerela High Court while keeping in mind a bail application seeking pre-arrest bail for the offenses under Section 376(2)(n) and Section 506 IPC, observed that in a case where there is a breach of promise will not amount to rape. Justice Raja Vijayaraghavan through his judgment observed that "The question to be considered in such cases is whether the accused had wanted to marry the victim or had mala fide motives and had made a false promise to that effect only to satisfy his lust". "If the materials, prima facie, suggest that the prosecutrix agreed 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, such cases will not fall within the ambit of rape and will have to be considered differently", the Court observed. Dependency was placed on the Supreme Court precedent Dr.Dhruvaram Muralidhar Sonar v. State of Maharashtra & Ors for the above observations.
The facts of the case were as the informant is married women having a girl child living separately from her husband due to some disagreements between the married couple. The accused used to contact her and bring her foods and other material things. According to the informant the accused used to rape her at the time when her daughter was not around and got her pregnant. When these facts were mentioned to the petitioner, the petitioner assured the informant to marry her as soon as the lady gets a divorce from her husband. But the lady approached the police as soon as the petitioner stopped contacting her.
Advocate Biju C.Abraham argued that there 0 elements of false promises and no material evidence tend to exist to prove that the consent to have sexual intercourse was debased by ‘misconception of fact’ arising out of the promise to marry.
Anticipatory bail was allowed by the Court to the accused, noting that it was "difficult to accept at this stage that a false promise was given to engage her in a sexual relationship and that it was under such misconception of the fact that she had acceded to the wishes of the petitioner".
The court held that custodial interrogation of the accused was not necessary, and allowed pre-arrest bail one conditions that he should cooperate with the investigation and he would appear before the I.O on all Saturdays between 9 a.m and 11 a.m for 2 months or until the period where the final report is filed, whichever is earlier.
Case name- Tijo Varghese v State of Kerala
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