A sexual relationship between two willing adults will not amount to rape, unless the consent for sex was obtained by a fraudulent act or misrepresentation, the Kerala high court on Friday said while granting bail to a central government standing counsel who was earlier arrested in a sexual assault case filed by his colleague.
Justice Bechu Kurian Thomas granted bail to the income tax department standing counsel Navaneeth Nath, who was arrested by the police in Kochi on June 21 on a complaint filed by a Kollam-native woman alleging he had raped her after giving false promise of marriage.
The court, in its order, said even if a sexual relationship between two willing partners does not culminate in marriage, still the same will not amount to rape, in the absence of any factor that vitiates the consent for sex.
"A 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... A subsequent refusal to marry or a failure to lead the relationship into a marriage are not factors that are sufficient to constitute rape even if the partners had indulged in a physical relationship," Justice Thomas said in his order.
The court said 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.
"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," the order said.
The court further said that in order to establish a false promise, the person who made 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," the court said.
The court said the observations made in this order are purely for the purpose of considering this bail application and shall not have any effect on the merits of the case in any other proceeding.
The lawyer was arrested on the basis of the statement given to the police by the victim from a city hospital where she was admitted after she had slit her wrist.
The prosecution alleged that Nath had raped the victim many times in different places after promising to marry her but later decided to marry another woman.
The bail was given to the lawyer after executing a bond for Rs one lakh with two solvent sureties each for the like sum.
