Even if a sexual relationship between two willing partners does not culminate in marriage, it will still not amount to rape, in the absence of any factor that vitiates the consent for sex, said the Kerala high court while granting bail to Navaneeth N Nath, a Central Government Counsel.
The complainant, also an advocate, had slit her wrist on June 21. Navaneeth was arrested the same night. Her statement to the police was that she was raped at various places, including a hotel in Ernakulam, after being promised marriage, but Navaneeth later decided to marry another woman. The complainant said she was forced to undergo two abortions.
A case was registered under IPC sections 376(2)(n) (rape) and 313 (causing miscarriage without consent).
The counsel for the petitioner argued that the statement given by the woman reveals only a consensual sexual relationship for the past four years.
In the order, justice Bechu Kurian Thomas clarified that the observations made in this order are purely for the purpose of the bail and shall not have any effect on the merits of the case in any other proceeding.
The court observed: “A sexual relationship between two willing adult partners will not amount to rape coming within the purview of section 376 of the IPC, unless the consent for sex was obtained by a fraudulent act or misrepresentation… A subsequent refusal to marry or a failure to lead the relationship into a marriage are not factors that are 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 was against her will or without her consent or when consent was obtained by force or fraud.”
The order also said that “consent for sex obtained by a promise to marry will amount to rape only when the promise was given in bad faith or is vitiated by fraud or was not intended to be adhered to at the time of making it”.
“In order to convert a physical relationship between a man and a woman into rape due to the failure to abide by the promise of marriage, it is essential that the decision of the woman to engage in the sexual act must be based on the promise of marriage. To establish a false promise, 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,” it said.
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