Consensual Sex With Married Woman Is Not Rape : Kerala HC

Kerala High Court recently released a statement in a rape and cheating case and announced that consensual sex between a married woman and a man cannot be considered a rape just because the man falsely promised to marry her.

Kerala HC was hearing a petition filed in regards with the case filed by a woman against her partner, in which she allegedly accused him for sexual assault.  The two met In Australia through Facebook. The woman was going through the proceedings of her divorce and got into an affair with the accused reportedly. They decided to get married and had consensual sex twice but never got married. The woman filed a case saying that she was sexually assaulted several times on the basis of the man's false promise of marrying her.

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Consensual Sex With Married Woman Is Not Rape : Kerala HC

"It is a case where the survivor, who is a married woman voluntarily had sex with her lover. She knew pretty well that she cannot enter into a lawful marriage with the petitioner, in as much as she is a married woman," said the order. The case was heard by Judge Kauser Edappagath, where the accused had passed the petition to quash all criminal proceedings that were pending against him.

Restating his previous judgement, the judge stated, "Recently this Court in XXX Vs. State of Kerala <2022 KHC 296> has held that the promise alleged to have been made by the accused to a married woman that he would marry her is a promise, which is not enforceable in law. Such an unenforceable and illegal promise cannot be a basis for the prosecution under Section 376 of IPC. Here, no question of promise to marry arise, since, the survivor is a married woman and she knew that legal marriage with the petitioner was not possible under the law"

The woman filed case as per the Indian Penal Code Sections 493 (cohabitation caused by a man deceitfully inducing a belief of lawful marriage), 417 (punishment for cheating) and 376 (punishment for rape). The court observed that section 376 was not valid as the woman knew that the promise made could not be fulfilled as she was married and hence, was unenforceable and illegal promise. Sections 417 and 493 could not be attracted as there wasn't enough record to prove that. Hence, the court quashed the case against the man.