Sex on Pretext To Marry is Rape Only if Victim’s Freedom of Choice Violated: HC

The Kerala High Court, on Wednesday, 6 April, acquitted a man who was earlier convicted of raping a woman by a trial court. The high court stated that sex on the promise to marry will tantamount to rape only if the victim's decisional autonomy (freedom of choice) has been violated.

Justices A Muhamed Mustaque and Kauser Edappagath, deciding in favour of the appellant, a 35-year-old man, held that the case was not one of forcible sexual act as against the victim's will but it was a sexual act on the promise to marry where consent is implicit, reported PTI.

Setting aside the sentence of life imprisonment given by the trial court, the HC, in its 30 March order, noted that the victim and accused were in a relationship longer than 10 years, while the sexual act took place just before the marriage preparation was made.

Victim Didn't Hold His Promise Because of Family Pressure: HC

The accused had sexual intercourse with the victim on three different occasions, the court pointed out.

“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 HC said.

It continued that in the absence of other evidence on the prosecution's side, the accused man's conduct can amount to a mere 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 added.

No Lack of Consent Stated

The high court explained that evidence for lack of consent needs to be given by the prosecutrix.

Mentioning that the prosecutrix did not state any evidence to form foundational facts for attracting the presumption under Section 114-A of the Evidence Act, the court stated, “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 trial court had sentenced the accused to life imprisonment and a fine of Rs 50,000.

(With inputs from PTI.)