Consensual sex not a crime over unkept promise to marry: Kerala High Court

Kerala High Court granted relief to the accused and quashed the FIR. (Image generated using AI)

Observing that a subsequent failure to marry, by itself, cannot retrospectively make consensual sexual intercourse an offence, the Kerala High Court recently quashed a criminal case registered against a man accused of having physical relations with a woman on the false promise of marriage.

Justice Jobin Sebastian observed that, for attracting criminal liability, there must be a foundational allegation and evidence indicating that the promise was false at the very inception and that the promise had a direct nexus with the woman’s decision to engage in the sexual relationship.

“For the purpose of attracting criminal liability on the ground that consent was vitiated by a false promise of marriage, there must be a foundational allegation and material indicating that the promise was false at the very inception…A subsequent failure to marry, by itself, cannot retrospectively render consensual sexual intercourse an offence,” the order dated September 7 read.

Justice Jobin Sebastian observed that the continuation of the criminal proceedings in the case would not serve any useful purpose.

Why did the court quashed FIR?

According to the prosecution, the accused had sexual intercourse with the complainant after promising to marry her. It was stated that following their engagement, they began living together as husband and wife. The woman further alleged that after the accused learnt that she was two months pregnant, he asked her to abort the child and cheated her.

Seeking quashing of the FIR, the accused argued that the allegations themselves showed that the relationship was consensual and did not disclose the ingredients of offences under the BNS. He also pointed out that when the relationship began and the alleged sexual intercourse initially took place, the woman was still married to another man.

The counsel appearing on behalf of the woman told the court though she was a married woman when she initially came into contact with the accused and when the sexual relationship commenced, she subsequently obtained a divorce from her husband.

The court observed that when the relationship between the accused and the complainant developed and when the sexual relationship initially started, she was admittedly a married woman and her marriage had not been dissolved by a decree of a court. “In the aforesaid factual background, the allegation that the de facto complainant consented to the sexual relationship solely on the basis of a promise of marriage made by the petitioner cannot be believed,” the court said.

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It further found that the alleged sexual relationship was not confined to a single isolated occurrence and that they engaged in repeated sexual intercourse at different places.

The court noted that the fact that the complainant subsequently obtained a divorce from her husband and thereafter became engaged to the accused may be relevant to the subsequent course of their relationship; however, such subsequent events cannot, by themselves, establish that the consent given initially was obtained deceitfully.

The court also found that the allegation that the accused asked the woman to abort the pregnancy did not, by itself, disclose the essential ingredients of cheating. “The mere use of the expression “cheated” in the FIS cannot, by itself, constitute the offence unless the essential statutory ingredients are disclosed by the factual allegations,” it said.

Observing that the continuation of the criminal proceedings would not serve any useful purpose, the court quashed the FIR and all further proceedings arising from it.

Ashish Shaji is a Senior Sub-Editor at The Indian Express (Digital), where he specialises in legal journalism. Combining a formal education in law with years of editorial experience, Ashish covers court developments and key cases for the audience. Expertise Ashish is a law graduate (BA LLB) from IME Law College, CCSU. His work at The Indian Express focuses on translating the often-dense proceedings of courts into clear, legal content. He also runs liveblogs from the Supreme Court and various High Courts. Industry Experience: With over 5 years in the field, Ashish has contributed to several niche legal and professional platforms, honing his ability to communicate complex information. His previous experience includes: Lawsikho: Gaining insights into legal education and practical law. Verdictum: Focusing on high-quality legal news and court updates. Enterslice: Working at the intersection of legal, financial, and advisory services. ... Read More