Sex on promise to marry amounts to rape only if victim's decisional autonomy violated: Kerala High Court

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The Kerala High Court has acquitted a man whom a trial court convicted of raping his lover. The High Court held that sex on promise to marry will amount to rape only if the accused has violated the decisional autonomy of the victim.

Allowing an appeal filed by the 35-year-old man, Justices A Muhamed Mustaque and Kauser Edappagath held that this was not a case of forcible sexual act as against her will but a sexual act on a promise to marry where the consent is implicit.

Setting aside the life imprisonment awarded by the trial court, the High Court, in its March 30 order, said the victim and the accused were in a relationship for more than 10 years and the sexual act only occurred just before the preparation for the marriage was made. He had sexual intercourse with the victim on three occasions.

"The prosecution evidence itself would show that there was resistance from the parents of the accused to accept the marriage without dowry. That would show that the sexual act committed by the accused was with real intention to marry the victim and he could not hold on to his promise due to resistance from his family," the court said.

It said in the absence of any other evidence on the side of the prosecution, the conduct of the accused can only be treated as a breach of promise.

"In light of the discussions, we are of the view that the accused is entitled to benefit of doubt as the prosecution has failed to prove the sexual act was on a false promise to marry or the consent was obtained by non-disclosure of material facts," the court said.

Noting that the prosecutrix had not stated anything in evidence to constitute the foundational facts for attracting the presumption under Section 114-A of the Evidence Act, the High Court said, "Merely for the reason that the accused contracted another marriage immediately after the sexual act with the victim cannot give rise to the presumption of lack of consent. We cannot ignore the social circumstances of the parties."

The court said the lack of consent has to be stated by the prosecutrix.

The trial court had sentenced the man to undergo imprisonment for life and to pay a fine of Rs 50,000.

The court was hearing an appeal moved by a man against the order of a trial court which had convicted him of offence under Section 376 (punishment for rape) of the IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs 50,000.

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