KOCHI: The Kerala High Court on Tuesday held that having sex on the promise of marriage is an offence against the decisional autonomy of a woman who has the choice of engaging in physical intimacy.
However, merely the reason that the accused married another person immediately after the sexual act with the victim cannot give rise to the presumption of lack of consent, the court said, quashing the conviction of a man for the offence of rape on a false promise of marriage.
The HC observed that the offender may have the intention to marry; he may also know at the time of committing the sexual act that there are obstacles to the marriage. If he was not certain about the marriage, he is bound to disclose that fact to the woman. "If such a fact was not disclosed, consent may fall under the category of ‘misconception of fact’ and the consent would be vitiated under the category of the misconception of fact, as referred to in Section 90 of the IPC," the court held.
The court observed that the prosecution has miserably failed to prove the sexual act was on false promise or consent was obtained by non-disclosure of material facts. The prosecution alleged that the petitioner and victim were relatives and in love for 10 years. They had sex on three occasions, but upon facing resistance from his parents, the man married another woman.
"Merely for the reason that the accused contracted another marriage immediately after the sexual act with the victim cannot give rise to the presumption of lack of consent. We cannot ignore the social circumstances of the parties. The lack of consent has to be stated by the victim. The victim and accused were in a love relationship for more than ten years. The sexual act referred to only occurred just before the preparation for the marriage was made," observed the court.
The prosecution evidence itself would show that there was resistance from the parents of the accused to accept the marriage without a dowry. That would show that the sexual act committed by the accused was with the real intention to marry the victim and he could not hold onto his promise due to resistance from his family. In the absence of any other evidence on the side of the prosecution, the conduct of the accused can only be treated as a breach of promise. "In light of the discussions, we are of the view that the accused is entitled to benefit of the doubt as the prosecution has failed to prove the sexual act was on a false promise to marry or the consent was obtained by non-disclosure of material facts," said the court.
The court said that non-disclosure of material facts by the accused affecting the consent would amount to a violation of the sexual autonomy of the woman. Sexual autonomy consists of two requirements. First, the possession of relevant information, and second the ability to act in accordance with the personal assessment of that information. The material facts known to the accused if not shared with the woman at the time of committing the sexual act certainly would encroach upon her right to protect her decisional autonomy, said the court.