KOCHI: A man accused of raping a woman by having sex on the promise of marrying her is fulfilling his promise when he marries her later on and it need not be viewed as a compromise between the accused and the victim, says the Kerala high court.

Such a marriage can be taken into consideration by a court while considering whether the rape case needs to be quashed in view of the marriage between the accused and the victim, justice R Narayana Pisharadi said in a judgment.

The ruling that carves out an exception in the law laid down by Supreme Court that there can be no settlement between the accused and the victim in a rape case was given by the high court after considering a petition (Crl MC No. 8778/2017) filed by a 26-year-old man hailing from Pathanamthitta through advocate MT Sureshkumar.

In the judgment, the court referred to the law laid down by the apex court and said, “The question remains whether the marriage between the accused and the victim can be considered as a sufficient ground to quash the prosecution proceedings against the petitioner. The court can consider whether the averments in the first information report and other materials disclose commission of an offence of rape or only an act of consensual sex. In a case where the allegation is that the accused had sexual intercourse with a woman by obtaining her consent for such act by making a promise to marry her and when he subsequently marries her, it does not constitute a compromise or settlement between the accused and the victim. It really means fulfilment of the promise made by the accused to the prosecutrix. It is a fact which can be taken into consideration by the court to exercise the discretion to invoke the power under Section 482 of the Code (inherent powers of high court).”

Stating that there is a clear distinction between rape and consensual sex, the court said the intention of the accused must be examined very carefully by courts. There could also be cases where the woman agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by the accused or where the accused is not able to marry due to unforeseen circumstances beyond his control. “If the accused had any mala fide intention and if he had clandestine motives, it is a clear case of rape,” the judgment said.

In the instant case, the petitioner had no fraudulent intention as he had married the woman within a short period after the incident, the court pointed out while holding that it was a case of consensual sex. Quashing the rape case, the court said, “In this factual scenario, prosecution of the petitioner for committing an offence of rape would be an abuse of the process of the court. Continuation of the prosecution will cause embarrassment to the couple and it would create discords in their happy matrimonial life.”

