BINOY GEORGE, S/O. GEORGE Vs STATE OF KERALA

The petitioner has been arrayed as the accused in Crime No.1997 of 2017 of the Thodupuzha Police Station. The aforesaid crime was

registered under Section 376 of the IPC based on a complaint filed by a lady who shall henceforth be called as Mrs.M.

Mrs. M was employed in the Bahrain airport and is a graduate. She had completed her BBA and was earlier married in the year 1999. She has

a child who is aged 14 years in the said marriage which was dissolved in the year 2014. Her child is with her former husband. As she was living

without a partner, she decided to upload her details in the matrimonial website, Bharat matrimony. The petitioner herein had also registered in the

very same site. They exchanged their details and when the petitioner informed her that he was interested in marrying an unemployed lady, she

resigned her job at the Airport in the month of August, 2016 and came down to India to join the petitioner. The petitioner came and picked her up

from the airport and took her to his house at Marika. The petitioner had assured that he would marry her and persuaded her to have sexual

intercourse with him. She was taken to various places and had a very active sexual affair. Mrs.M was accommodated in an apartment at Kowdiar,

Trivandrum. On 16.9.2017, the petitioner left after informing her that his mother was unwell. Though on repeated occasions, Mrs.M requested that

the marriage be solemnised, the petitioner evaded giving one excuse or the other. When the petitioner did not contact the de facto complainant, she

made inquiries and she realised that on 15.11.2017 the petitioner herein had married another lady. According to the de facto complainant, her

consent for sexual intercourse was obtained by fraud and on a fake promise of marriage. On these allegations, the aforesaid complaint was filed.

The learned Senior counsel appearing for the petitioner, vehemently contented that the allegations in Annexure-A2 will not make out an offence

under Section 376 of the I.P.C. The victim is an educated lady who was working abroad in an Airport and she had voluntarily come down to India

and had a live-in relationship with the petitioner with no strings attached. The allegation that the petitioner had agreed to marry the victim is

absolutely baseless. Though in their conversations, the question of marriage had often cropped up, no solid assurance was given by the petitioner

to the de facto complainant. According to the learned counsel, the marriage between the petitioner and his wife was dissolved only in the month of

September 2016, and that being the case, the allegation that the petitioner had agreed to marry her on her arrival in India is clearly false. It is

further submitted that it was only much later that the petitioner became aware of the fact that she had a child who was aged 14 years in her

previous marriage. He also realised later that there were criminal proceedings pending against the lady in the Courts at Pathanamthitta. Much

reliance was also placed on the decision of the Hon''ble Supreme Court in Uday v. State of Karnataka [(2003) 4 SCC 46] to contend that there

are no materials to show that the consent was given under a misconception of fact or that the petitioner was aware or had reason to believe that the

consent was given by the lady in consequence of such misconception. The learned Senior counsel also relied on Annexure-A6 complaint preferred

by the de facto complainant before the learned Magistrate invoking the provisions of the Protection of Women from Domestic Violence Act, 2005

to contend that the allegations in the complaint are diametrically opposite to the averments in the complaint.

The de facto complainant has entered appearance through her counsel. The learned counsel has fervently countered the submissions of the

learned Senior counsel appearing for the petitioner. It is submitted that the victim was given false assurances by the petitioner and the materials

would show that the consent was obtained by fraud. It is evident that the victim had not agreed to submit herself while in free and unconstrained

possession of her moral and physical power to act in the manner she wanted. The petitioner had deposited large sums of money in the account of

the de facto complainant to give her a false sense of security. She was made to resign her job and come down to India on the strength of that

assurance given by the petitioner. In other words, the consent was obtained by creating a belief that the petitioner would marry the victim. The

victim was also provided with an accommodation at an apartment in Trivandrum. After exploiting the de facto complainant sexually on repeated

occasions and that too for a period of more than one year, the petitioner has reneged from his promise and had married another woman.

The learned Public Prosecutor has supported the submissions of the learned counsel appearing for the de facto complainant .

Mrs.M is an adult lady who was earlier married and a Graduate. She was employed gainfully in a foreign country. She has filed a complaint

against the petitioner before the learned Magistrate under the provisions of the Protection of Women from Domestic Violence Act. In her

complaint, a copy of which is produced as Annexure-A6, she has stated in paragraph No.5 that though she made all sincere and earnest efforts to

lead a peaceful and happy life with the petitioner herein, but due to the failure of the petitioner to perform his duties and responsibilities as a sincere

husband, she was unable to live with him any further. These aspersions are contrary to the allegations in the statement given by her before the

police. Consent for the purpose of Section 375 of the IPC means an unequivocal voluntary agreement when the woman by words, gestures or any

form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. In other words, it requires voluntary

participation after the exercise of intelligence based on the knowledge of the significance and moral quality of the act and after having fully

exercised the choice between resistance and assent. Whether there was a consent or not has to be ascertained only on an evaluation of all the

relevant circumstances. A woman can be held to have given consent only if she has freely agreed to submit herself while in free and unconstrained

possession of her physical and moral power to act in a manner in which she wanted. Consent may be express or implied, coerced or misguided or

obtained willingly or through deceit. There is a clear distinction between rape and a consensual act and in a case like this, this Court will have to

carefully examine whether a promise has been made to satisfy his lust or whether the consent involved was given after wholly understanding the

nature and consequences of sexual indulgence. It is by now settled that the acknowledged consensual physical relationship between two willing

adults would not constitute an offence under Section 376 of the IPC, especially, when the victim was a major on the date of occurrence. Having

gone through the materials on record, I am of the considered view that the petitioner has made out a case for issuance of an order of pre-arrest

bail. In the result, this petition will stand allowed. However, it shall be subject to the following conditions:

i). The petitioner shall appear before the investigation officer within ten days from today and shall undergo interrogation. Thereafter, if he is

proposed to be arrested, he shall be released on bail on his executing a bond for a sum of Rs.40,000/- (Rupees forty thousand only) with two

solvent sureties each for the like sum.

ii) The petitioner shall co-operate with the investigation and shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11

a.m., for one month or till final report is filed, whichever is earlier. He shall make himself available for any medical test that he may have to be

subjected to.

Iii) The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as

to dissuade him/ her from disclosing such facts to the court or to any police officer. The petitioner shall not make any attempt to contact the victim

or her family members.

iv) The petitioner shall not commit any similar offence while on bail.

v) The petitioner shall not leave India without the previous permission of the court having jurisdiction.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any,

and pass appropriate orders in accordance with the law.