XXXXXXXXXX vs State Of Kerala

Dr. Kauser Edappagath, J

The accused and the victim in all the above three Crl.M.Cs are one and the same. The allegations in all these cases are also identical. All the cases are settled between the parties. Hence, I am disposing of all these cases together.

I am referring the parties as the accused and the victim. Admittedly, the accused and the victim are married and having children. Both of them were not in good terms with their respective spouses. Both of them fell in love, visited so many places all over the country, stayed in lodges and also lived together in rental house for months and had consensual sexual intercourse. It appears that, thereafter, the relationship got strained which led to the institution of three crimes which are the subject matter of the above three Crl.M.Cs.

Crl.M.C   No.5816/2022   pertains   to   Crime   No. 2353/2021 of Thiruvalla Police Station. The offences alleged therein are punishable under Sections 366, 376(2) (n), 403 and 420 of IPC. The prosecution allegation therein is that, the accused, after giving false promise of marriage to the victim, conducted a namesake 'Thalikettu' at the temple, had physical relationship with her on several occasions and further obtained gold ornaments and money from her and thereafter, withdrew from the promise and thus cheated her.

Crl.M.C.No.5784/2022 pertains to Crime No.314/2022 of Thiruvalla Police Station. The offences alleged are punishable under Sections 450, 341, 323, 376(2)(n), 195A and 506 of IPC. The prosecution allegation therein is that, the accused and his wife trespassed into the hotel room of the victim where she and her children resided and threatened her to withdraw the case registered against the accused and thereafter, the accused committed rape on her, threatened her and obtained signature in an affidavit to withdraw the case.

Crl.M.C.No.5759/2022 pertains to Crime No.907/2022 of Thiruvalla Police Station. The offences alleged are punishable under Sections 376(2)(n), 323 and 506 of IPC. The prosecution allegation therein is that the accused after giving false promise of marriage to the victim, enticed her to the lodge and committed sexual intercourse and thereafter assaulted her.

I have heard Sri. T.P. Pradeep, the learned counsel for the accused, Sri.Unni K.K., the learned counsel for the victim and Smt.T.V. Neema, the learned Senior Public Prosecutor.

The victim entered appearance through counsel and an affidavit had been sworn in by her. The averments in the petition as well as the affidavit sworn in by the victim would show that the entire dispute between the parties has been amicably settled and the victim had decided not to proceed with the crime any further. The learned Prosecutor, on instruction, submits that the matter was enquired into through the investigating officer and a statement of the victim was also recorded wherein she reported that the matter was amicably settled.

It is true, in all the cases offence under Section 376 is alleged. However, a perusal of the FIS as well as the materials collected would show that the offence punishable under Section 376 of IPC is not attracted. As stated already, the accused and the victim are married persons. A reading of the FIS would show that the accused and the victim went to several places, resided together in lodges and had consensual sex. It would further show that both of them lived together in two rented houses for months and had consensual sex. It is true, in one of the cases (Crime No.314/2022) there is an allegation of forceful sex. However, on evaluation of the entire case of the victim and on a reading of the entire records, it would show that the sex the victim had with the accused was purely consensual in nature. She alleges that she consented for sex persuaded by the false promise of marriage given by the accused. Recently, this Court in XXX v. 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 victim is a married woman and the accused is a married man and she knew that legal marriage with the petitioner was not possible under the law. Hence, the basic ingredients of Section 376 of IPC are not attracted. That apart, the entire dispute between the parties is already settled.

For the reasons stated above, no purpose will be served in proceeding further against the accused. Accordingly, above three Crl.M.Cs are allowed. All further proceedings pursuant to Crime Nos.314/2022, 907/2022 and 2353/2021 of Thiruvalla Police Station hereby stands quashed.