Single-judge Justice Kauser Edappagath, after examining the facts of the case and the statement given by the complainant, observed that the sex between the two lawyers can only be termed as one on account of love and passion and not on account of a false promise to marry.
He also found that the consent of the woman, as defined in Explanation 2 of Section 375 (rape) of Indian Penal Code, could be discerned from her statement.
“Consent is at the centre of the offence of rape. Explanation 2 to Section 375 of IPC refers to the form of consent. It specifically says that consent 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. Thus, if the consent as described in Explanation 2 could be made out from the statement of the victim, the offence under Section 375 of IPC cannot be said to be attracted,” the order stated.
Referring to a host of precedents set by the Supreme Court, the Court highlighted the distinction between retraction of promise to marry and false promise to marry.
“Thus, now it is trite that if a man retracts from his promise to marry a woman, consensual sex they had will not constitute an offence of rape u/s 376 of IPC unless it is established that consent for such act was obtained by him by giving a false promise of marriage with no intention of being adhered to and that promise made was false to his knowledge“, the Court observed.
The allegation against the accused-lawyer in the present case was that he had been in a relationship with his colleague for over four years but in the end, he decided to marry another woman.
When the complainant learnt about this and met his fiance at a hotel, she allegedly tried to commit suicide by slitting her veins. While speaking to the police after the incident, the woman recounted her story, leading to his arrest. It was also alleged that the complainant was forced to undergo two miscarriages at the instigation of the petitioner.
In July this year, the High Court had granted him bail in the matter.
Subsequently he moved the Court seeking to quash the FIR registered against him, arguing that the sexual intercourse between him and the complainant was consensual.
The Court was told that the dispute between the parties had been settled and the complainant had already sworn on affidavit that she has no objection to quashing the proceedings.
However, the Court deemed it fit to consider the case on merits considering the fact that it was a case of alleged rape.
The High Court observed that even if the allegations in the statement of the complainant were assumed to be true, the offences alleged would still not stand.
Moreover, it noted that as far as the offence of causing a miscarriage without the woman’s consent was concerned, the complainant had sworn on affidavit that the same occurred due to medical complications alone.
Therefore, the Court allowed the plea and quashed all proceedings against the petitioner.