The bench of Justice Kauser Edappagath while dealing with the petition filed to quash all further proceedings in Crime registered for the offences punishable under Sections 376, 417 and 493 of IPC stated that if a man retracts his promise to marry a woman, consensual sex would not constitute an offence under Section 376 of IPC.
The prosecution in this case alleged that after guving false promises of marriage, the accused sexually assaulted the victim on several occasions at Australia. The issue raised before the bench was:
Whether the petitioner is liable to be convicted under Sections 376, 417 and 493 of IPC?
The Kerala HC observed that retraction of a promise to marry a woman and the consensual sex thereon would not constitute an offenceunder Section 376 of IPC unless it is established that consent for such sexual act was obtained by him, by giving false promise of marriage with no intention of being adhereing to that promise and it was made false to his knowledge.
The case of XXX v. State of Kerala was relied upon by the bench where it was held that “the promise alleged to have been made by the accused to a married woman that he could marry her is a promise which is not enforceable in law. Such an unenforceable and illegal promise cannot be a basis for prosecution under Section 376 of IPC. Here, no question of promise to marry arise, since, the victim is a married woman and she knew that legal marriage with the petitioner was not possible under the law.”
The Kerala HC in the case in hand was of the view that the basic ingredients of section 376, 417 and 493 of the IPC are not attacted in the case in hand.There are no ingredients to attract the offence of cheating. There is no case for the 2nd respondent that the sex they had was after inducing a belief of lawful marriage.
In the view of above arguments, the bench allowed the petition.
Case Title: Tino Thankachan v. State of Kerala
Bench: Justice Kauser Edappagath
Case No.: CRL.MC NO. 1819 OF 2019
Counsel for the petitioner: Adv. Mahesh V Ramakrishnan
Counsel for the respondent: Sri Sangeetha Raj
0 Comments