While considering a bail application seeking pre arrest bail, the Kerala High Court observed that every case of breach of promise to marry will not amount to rape under Sec 376 (2) (n) and 506 IPC.
The informant is a married woman with a girl child residing separately from her husband. The accused used to contact her and bring her food and other items. As per the informant, the accused raped her when her daughter was not around and made her pregnant.
Whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise to that effect only to satisfy his lust.
It was alleged by the informant that when the petitioner came to know that the lady got pregnant he has assured that he would marry her as and when she gets a divorce from her husband. Later he stopped contacting the lady.
The Counsel for the Petitioner Advocate Biju C.Abraham had argued that there is no element of false promise and no material evidence exists to suggest that the consent to have sexual intercourse was vitiated by a ‘misconception of fact’ arising out of a promise to marry.
While relying on Dr.Dhruvaram Muralidhar Sonar v. State of Maharashtra & Ors to find the difference between rape and consensual sex, Justice Raja Vijayaraghavan observed “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 so, such cases will not fall within the ambit of rape and will have to be considered differently”.
The Court also observed 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 fact that she had acceded to the wishes of the petitioner”.
The Court allowed anticipatory bail to the accused & held that “custodial interrogation of the accused was not necessary, and allowed pre-arrest bail on condition that he should cooperate with the investigation and shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m., for two months or till the final report is filed, whichever is earlier”.
Case Name : Tijo Varghese v State of Kerala
Case No : Bail Application No.3839/2020