[Cites 9, Cited by 0]
Kerala High Court
Vivek vs State Of Kerala on 11 February, 2026
Crl.M.C.1086/24
1
2026:KER:12470
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 11TH DAY OF FEBRUARY 2026 / 22ND MAGHA,
1947
CRL.MC NO. 1086 OF 2024
CRIME NO.865/2023 OF Mannuthy Police Station, Thrissur
CP NO.84 OF 2023 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -III,THRISSUR
PETITIONER(S)/ACCUSED
VIVEK
AGED 31 YEARS
S/O. VIJAYAN, POLUVALAPPIL HOUSE, MANNOR,
MULAYAM, THRISSUR, PIN - 680654
BY ADVS.
SRI.K.R.VINOD
SMT.M.S.LETHA
SRI.NABIL KHADER
SHRI.KELWIN SIMON
SHRI.MAZIN IBRAHIM
SMT.DEVIKA S.
RESPONDENTS/STATE AND DEFACTO COMPLAINANT
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, PIN - 682031
2 XXXXXXXXXX
XXXXXXXXXX
Sr.PP SMT BINDU O.V.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 5.2.2026, THE COURT ON 11.02.2026 PASSED THE
FOLLOWING:
Crl.M.C.1086/24
2
2026:KER:12470
ORDER
Dated : 11th February, 2026
The accused in C.P.84/2023 on the file of Judicial Magistrate of First
Class-III, Thrissur, arising out of crime No.865/2023 of Mannuthy police
station, Thrissur, filed this petition under Section 482 Cr.P.C, praying for
quashing all further proceedings against him. The offences alleged against the
petitioner are under Sections 376 (2)(n) and 354 IPC.
2. The prosecution case is that the accused after promising to marry
the de facto complainant, subjected her to sexual abuse repeatedly during the
period from June 2022 till July 2023 and thereby he is alleged to have
committed the aforesaid offences.
3. According to the learned counsel for the petitioner, even if the
entire allegations levelled against the petitioner are believed as such, the same
does not constitute the offence of rape. Therefore, he prayed for quashing all
further proceedings against the petitioner.
4. The petition was strongly opposed by the learned Public
Prosecutor.
5. On a perusal of the FI statement it is seen that while the de facto
complainant was working in the office of a marriage bureau, after the death of
her husband, she came in contact with the petitioner who came there for
registering his name in the bureau. Thereafter, they regularly used to contact
2026:KER:12470
each other. He regularly used to contact her through video calls in which he
used to appear naked. On one day he took her to a hotel near Jubilee Mission
hospital. Before alighting from the car he applied sindoor on her forehead and
tied a knot around her neck. In the hotel they have taken a room and they had
physical relationship. After promising to marry her lawfully, he took her to
different places on different dates and they had sexual relationship with each
other till July 2023. The relationship strained when he had taken steps for
marrying another lady.
6. Now the question to be considered is whether the consent given
by the de facto complainant to sexual intercourse with the petitioner with
whom she was deeply in love, on a promise that he would marry her on a later
date, can be said to be given under a misconception of fact. In the decision in
Uday v. State of Karnataka [(2003) 4 SCC 46] the Apex Court, while
dealing with this issue, held as follows:
"It therefore appears that the consensus of judicial opinion
is in favour of the view that the consent given by the
prosecutrix to sexual intercourse with a person with whom she
is deeply in love on a promise that he would marry her on a
later date, cannot be said to be given under a misconception of
fact. A false promise is not a fact within the meaning of the
Code. We are inclined to agree with this view, but we must add
that there is no straitjacket formula for determining whether
consent given by the prosecutrix to sexual intercourse is
voluntary, or whether it is given under a misconception of fact.
2026:KER:12470
In the ultimate analysis, the tests laid down by the courts
provide at best guidance to the judicial mind while
considering a question of consent, but the court must, in each
case, consider the evidence before it and the surrounding
circumstances, before reaching a conclusion, because each
case has its own peculiar facts which may have a bearing on
the question whether the consent was voluntary, or was given
under a misconception of fact. It must also weigh the evidence
keeping in view the fact that the burden is on the prosecution
to prove each and every ingredient of the offence, absence of
consent being one of them."
7. In the decision in Deepak Gulati v. State of Haryana [(2013) 7
SCC 675] with regard to consent in case of charge of rape, the Hon'ble
Supreme Court, held that:
"Consent may be express or implied, coerced or
misguided, obtained willingly or through deceit. Consent is an
act of reason, accompanied by deliberation, the mind
weighing, as in a balance, the good and evil on each side.
There is a clear distinction between rape and consensual sex
and in a case like this, the court must very carefully examine
whether the accused had actually wanted to marry the victim,
or had mala fide motives, and had made a false promise to this
effect only to satisfy his lust, as the latter falls within the ambit
of cheating or deception. There is a distinction between the
mere breach of a promise, and not fulfilling a false promise.
Thus, the court must examine whether there was made, at an
early stage a false promise of marriage by the accused; and
whether the consent involved was given after wholly
2026:KER:12470
understanding the nature and consequences of sexual
indulgence. There may be a case where the prosecutrix agrees
to have sexual intercourse on account of her love and passion
for the accused, and not solely on account of
misrepresentation made to her by the accused, or where an
accused on account of circumstances which he could not have
foreseen, or which were beyond his control, was unable to
marry her, despite having every intention to do so. Such cases
must be treated differently. An accused can be convicted for
rape only if the court reaches a conclusion that the intention of
the accused was mala fide, and that he had clandestine
motives."
8. In the decision in Dhruvaram Murlidhar Sonar v. State of
Maharashtra [(2019) 18 SCC 191], the Hon'ble Supreme Court, while
interpreting Section 90 IPC and clause 'secondly' in Section 375 IPC
observed that:
"Thus, there is a clear distinction between rape and
consensual sex. The court, in such cases, must very carefully
examine whether the complainant had actually wanted to
marry the victim or had mala fide motives and had made a
false promise to this effect only to satisfy his lust, as the latter
falls within the ambit of cheating or deception. There is also a
distinction between mere breach of a promise and not fulfilling
a false promise. If the accused has not made the promise with
the sole intention to seduce the prosecutrix to indulge in sexual
acts, such an act would not amount to rape. There may be a
case where the prosecutrix agrees to have sexual intercourse
2026:KER:12470
on account of her love and passion for the accused and not
solely on account of the misconception created by the accused,
or where an accused, on account of circumstances which he
could not have foreseen or which were beyond his control, was
unable to marry her despite having every intention to do. Such
cases must be treated differently. If the complainant had any
mala fide intention and if he had clandestine motives, it is a
clear case of rape. The acknowledged consensual physical
relationship between the parties would not constitute an
offence under Section 376 IPC."
9. Thus the law is well settled that, absence of consent cannot be
presumed in every case where the prosecutrix alleges that she indulged in
sexual intercouse with the offender believing the offer of marriage made by
him. In order to constitute the offence of rape, it has to be established that
from the very beginning the accused was not having any intention at all to
marry the prosecutrix and that the offer of marriage was made as a ploy to
make her surrender to him in order to satiate his carnal desires.
10. On a perusal of the above FI statement it can be seen that the
relationship between the petitioner and the de facto complainant was a
consensual one. The version of the de facto complainant is that she had given
consent because of the promise of marriage given by the petitioner. Relying
upon Annexure-A1 chat history, the learned counsel for the petitioner would
argue that there was no such promise. On a perusal of Annexure-A1 chat
2026:KER:12470
history exchanged between the petitioner and the de facto complainant it
appears that she wanted to keep the relationship with the petitioner in secret.
Therefore, the claim of the de facto complainant that she had given consent
because of the promise of marriage itself cannot be believed. Moreover, in this
case there is no material to establish that from the very beginning the accused
was not having any intention at all to marry the de facto complainant, so as to
make out the offence of rape. In the above circumstances, no useful purpose
will be served in continuing the proceedings against the petitioner and as such,
this Crl.M.C is liable to be allowed.
In the result, this Crl. M.C is allowed. All further proceedings against
the petitioner in C.P.84/2023 on the file of Judicial Magistrate of First Class-
III, Thrissur arising out of crime No.865/2023 of Mannuthy police station,
Thrissur, stands quashed under Section 482 of the Code of Criminal Procedure.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/6.2.26
