GEORGEKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner has been arrayed as the sole accused in the instant Crime No.1899/2019 of Kottarakkara Police Station, which has been registered for offences punishable under Sections 447, 506 and 376 of IPC on the basis of the FI Statement given by the lady de facto complainant on 25.06.2019 at 11.30 p.m. in respect of the alleged incidents which had happened for the period from 14.02.2016 to 19.06.2019.

(2.) Learned counsel for the petitioner would urge that the abovesaid allegations have been falsely foisted on the petitioner and has elaborately taken this Court's attention to contents of the First Information Statement given by the lady de facto complainant on 25.06.2019. Wherein it is stated that the lady de facto complainant now aged 30 years has been working in Bangalore as a Nurse since 2015 and that she became acquainted with the petitioner, who assured her that he would marry her and on that basis she had gone to the Velankanni Matha church near Kollam, where he had exchanged rings with her in the church and she resided in a house arranged by him at Valakom and resided with him there for about two to three days and had sexual relationship with him. Thereafter, she had sexual relationship with him on several other occasions. Later she came to know that the petitioner is married and he is having two children. The petitioner then assured her that he would get divorce from his wife and that he would marry her and on that basis they still continued their sexual relationship on further occasions. That when the petitioner was found to be acting indifferently later, she started looking out for another marriage proposal at which time the petitioner wanted to prevent it and he had circulated their intimate photographs through You Tube and had threatened her, etc. Later she came to know that the petitioner is not interested to marry her, etc. That on 19.06.2019, he had come to her mother's residence and had altercations with her and destroyed the window panes in the house, etc. The petitioner has been arrested in this case on 26.06.2019 and has been under judicial custody since then.

(3.) Learned counsel for the petitioner would also point out that a reading of the FIS would indicate that if the allegations narrated therein are true, the same could have happened only on the basis of consent between the parties and that even after she came to know that the petitioner is married she still continued to have sexual relationship with him on several occasions on the premise that he had assured her that he would divorce his wife and then marry her, etc. and that the vital ingredients of the offence of rape as per Sec.376 of the IPC are not made out in this case. Learned counsel for the petitioner would also invite this Court's attention to various rulings of the Apex Court and various High Courts and this Court, which has held that there is a substantial distinction between rape as per Sec.376 of the IPC and consensual sexual relationship and that in such cases, where the woman continues to have sexual relationship with the man for quite a long period, it is quite difficult to hold that the offence of rape is made out and that breach of promise to marry cannot be the basis to contend that the consent of the woman was obtained on the basis of misconception of fact as per Sec.90 of the IPC, etc. Further it is pointed out that in the instant case, the lady's specific case is that the petitioner had assured her that he would divorce his wife and then marry her and that therefore it is too elementary that promise made by a married man that he would marry an unmarried woman, has no legal efficacy, etc. Further it is pointed out that the petitioner has already undergone detention in this case for the last 36 days and that his continued detention is not necessary and that this Court may order to release him on regular bail, subject to any stringent conditions.