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A man, who had sex with a married woman, cannot be prosecuted on a complaint alleging that he had sex by promising to marry her, as the woman is already married, reiterated the high court.

Justice Kauser Edappagath was considering a petition filed by a 25-year-old man from Kollam challenging a case registered against him by Punalur police alleging rape, cheating, and cohabitation. It was alleged that he deceitfully induced a belief of lawful marriage (section 493 of IPC).

The case was registered on the complaint filed by a woman who alleged that she was sexually assaulted by the accused on several occasions while they were in Australia by giving false promise of marriage after meeting her via Facebook. The complainant was living separately from her spouse and divorce proceedings were underway at the time.

After going through the allegations in the first information statement, the court said the sexual intercourse was consensual in nature.

Noting a recent judgment of the Kerala high court (Ranjith Vs. State of Kerala, 2022), the court said it is settled law that if a man retracts from his promise to marry, consensual sex they had would not amount to rape, unless it is established that the consent was obtained by giving a false promise of marriage with no intention to adhere to it.

This is a case where a married woman voluntarily had sex with her lover and she knew pretty well that she cannot enter into a lawful marriage with the petitioner as she is married, the court pointed out.

The high court had recently held that the promise allegedly made by the accused to a married woman that he would marry her is a promise which is not enforceable in law. Such an unenforceable and illegal promise cannot be the basis for the prosecution for rape, the court said.

No question of promise to marry arises in this case as the victim is a married woman and she knew that legal marriage with the petitioner was impossible under law. Basic ingredients of the offences of rape, cheating, and cohabitation by deceitfully inducing a belief of lawful marriage are absent in the case, HC said.


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