Kerala High Court Clarifies Consensual Sex Without Misconception is Not Rape
The Kerala High Court has quashed the criminal proceedings against a man accused of rape, clarifying that consensual sexual intercourse without a misconception of fact does not constitute rape. The case involved a tempo van driver and a woman who accused him of rape in 2005, 2011, 2015, and 2016.
Justice A. Badharudeen noted that the complainant did not file any complaint until 2017, 13 years after the alleged incidents. The court found that the sexual relationship between the two was consensual and not based on any misconception of fact.
The petitioner met the complainant in 2005 when her family hired his van for a trip. They got close through phone conversations, and the complainant alleged that he raped her in his van in July 2005. She also claimed he photographed her and outraged her modesty. She further alleged rape incidents in 2011, 2015, and 2016.
The petitioner was accused of offences under Sections 376 (punishment for rape), 342 (wrongful confinement), and Section 66E (violation of privacy) of the IPC and IT Act. The petitioner’s counsel argued that the relationship was consensual and that no rape complaint was lodged in 2005.
The court referred to the Supreme Court case Naim Ahmed v. State (NCT of Delhi), 2023, which stated that not every breach of a promise to marry should be prosecuted as rape. A promise to marry made without intent to fulfill it would invalidate consent under Section 90 of the IPC, thus warranting prosecution under Section 376.
In this case, the court concluded that there was no evidence to suggest that the complainant’s consent was obtained through any misconception of fact. Consequently, all proceedings against the petitioner were quashed.
Case Title: Sujith v State of Kerala
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