The Kerala High Court has declined to quash a rape case against a man accused of establishing a sexual relationship with a woman under the false promise of marriage, only to later retract the promise and claim that "sex is not a promise."

The single-handed bench of Justice A. Badharudeen, observed that:

"when, prima facie, materials show that the prosecutrix was subjected to sexual intercourse on the promise of marriage without any bona fides and under a misconception of fact, the consent is vitiated."

The prosecution's case alleges that the accused, a police officer and the brother of the complainant's friend, first met the victim in 2019 while her marriage to another man was being arranged. However, due to the COVID-19 pandemic, the wedding was delayed. During this period, the accused offered to marry the complainant, and based on this promise, they engaged in sexual relations multiple times.

The accused also reportedly interacted with the complainant's family, where marriage discussions occurred between their respective fathers. However, he later withdrew his marriage proposal. In January 2022, the victim filed a complaint, accusing the accused of visiting her workplace at a hospital, where she worked as a nurse, and threatening to release her nude photographs if she did not withdraw her complaint.

In seeking to quash the proceedings, the accused argued that the relationship was consensual, and no rape occurred. Advocate K. Siju, representing the accused, referred to precedents, including Deepak Gulati v. State of Haryana (2013) and Shambhu Kharwar v. State of Uttar Pradesh (2022), asserting that a consensual relationship based on a promise of marriage does not amount to rape unless the promise was false from the outset.

However, the Public Prosecutor contended that the case should proceed to trial, arguing that the accused misused the promise of marriage to gain consent for sexual intercourse, rendering the consent invalid under Section 90 of the Indian Penal Code (IPC). Additionally, the accused's alleged threats to release intimate photographs of the victim were deemed further acts of intimidation and harassment.

The court emphasized that consent obtained through a false promise of marriage, where the promisor has no genuine intent to marry, is invalid under Section 90 of the IPC. The court noted, "The legal position is emphatically clear that a promise to marry, without any intention or inclination to marry the victim, will vitiate the consent. If consent has been given under a misconception of fact or fear of injury, it cannot be considered valid consent."

The court also referred to Explanation 2 to Section 375 of the IPC, which defines consent as an unequivocal, voluntary agreement, communicated by words, gestures, or other forms of verbal or non-verbal communication.

In light of these observations, the court dismissed the petition, ruling that the consent in this case was vitiated and that the accused's attempt to quash the proceedings was not valid.

Cause Title: Appu v. State of Kerala [CRL.MC NO. 9854 OF 2024]