Relationship turning sour will not attract offence of rape: Kerala HC

Ernakulam: The Kerala High Court on Friday orally observed that a relationship between a man and a woman turning sour cannot lead to rape charges against the man. It said sexual relationship between two willing adult partners will not amount to rape coming within the purview of section 376 of the IPC, unless the consent for sex was obtained by a fraudulent act or misrepresentation.

The bench of Justice Bechu Kurian Thomas made the observation while granting bail to advocate Navaneeth N Nath, 29, who was arrested last month alleging that he had raped a woman lawyer at various places after promising to marry her and thereafter backed out from the promise and decided to marry another woman.

The prosecution alleged that on coming to know about the proposed marriage, the victim attempted to commit suicide. Nath is a standing counsel of the Central Government in the High Court. The lawyer was arrested under sections 376(2)(n) and 313 of IPC on June 23.

The court said, "A relationship turning sour at a later point of time will not amount to rape. In the present social context, we have live-in relationships and open marriages...Practically speaking, the age of marriage has also changed now. Girls aged 28 and 29 years are not ready to get married these days. They are enjoying their independence.

New generation children don't always want to marry, they don't want to have children. But the difficulty that arises is that allegations of rape surface after these relationships turn sour."

The Court added that this change in relationships has led to an increasing number of rape allegations being raised after these couples break up and marry others. However, this does not always imply that one of the partners was forced into having sexual relationship on a false promise to marry.

"Now we find young men and women living together, enjoying relationships and like in foreign countries. It is only after they understand their physical and mental compatibility that they decide to get married. At a later stage, if they realise that they are incompatible, they both may end the relationship. There might be situations where one of them prefers to continue in the relationship but the other does not. But all of these are not not situations which will amount to a case of rape. It may be a breach of promise, but breach of promise is not rape," it added.

The court further stated that the sexual relationship between a man and a woman can amount to rape only if it was against her will or without her consent or when consent was obtained by force or fraud'.

The Bench, however, explained that the consent for sex obtained by a promise to marry will amount to rape "only when the promise was given in bad faith or is vitiated by fraud or was not intended to be adhered to at the time of making it".

"In order to convert a physical relationship between a man and a woman into rape due to the failure to abide by the promise of marriage, it is essential that the decision of the woman to engage in the sexual act must be based on the promise of marriage. To establish a false promise, the maker of the promise should have had no intention to uphold his word at the time of making it and the said promise should have induced the woman to submit herself to the physical relationship. There must be a direct nexus between the physical union and the promise of marriage,'' said the judge.