‘Sex between consenting adults cannot be rape under Sec 376’: Kerela High Court

New Delhi: Two consenting adults who are involved sexually with each other will not and cannot be prosecuted for rape under the purview of section 376 of the Indian Penal Code (IPC).

However, if the consent was obtained with a fraudulent act or a misrepresentation the accused can be put on trial with charges of rape.

This observation came into light when a single judge bench of Justice Bechu Kurian Thomas was granting a bail order to advocate Navaneeth N Nath. He was arrested by the local police last month when a woman filed a complaint against him. The woman alleged that he promised to marry her and later backed out and went to marry another woman.

Following the allegations Navaneeth N Nath was arrested by the police on June 23 under the sections 376(2)(n) and 313 of the IPC. Nath is a standing counsel for the Central Government in the High Court.

The observation made by the court read, “Even if a sexual relationship between two willing partners does not culminate in marriage, still the same will not amount to rape, in the absence of any factor that vitiates the consent for sex. A subsequent refusal to marry or a failure to lead the relationship into a marriage are not factors that are sufficient to constitute rape even if the partners had indulged in a physical relationship.”

The court further said, “A sexual relationship between a man and a woman can amount to rape only in scenarios where it is against her will or without her consent. It is also a rape if the consent was obtained by force or fraud.”

Justice Thomas further explained the consent for sex obtained by a promise to marry can amount to rape “only when the promise was made in bad faith or is vitiated by fraud or was not made with the intention to adhere to it.”

The judge said, “In order to convert a physical relationship between a man and a woman into rape due t the failure to abide by the promise of marriage, it is essential that the decision of the woman o engage in the sexual act must be based on the promise of marriage. To establish a false promise, the maker of the promise should have had no intention to uphold his word at the time of making it and the said promise should have induced the woman to submit herself to the physical relationship. There must be a direct nexus between the physical union and the promise of marriage.”

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