Consensual 2-year relationship turning sour can't be termed sexual assault: Kerala High Court

The Kerala High Court recently granted bail to a 32-year-old man accused of sexually exploiting a divorced woman on the promise of marriage [XXX v State of Kerala].

Justice Bechu Kurian Thomas observed that the materials on record prime facie suggested that the accused and the victim were in a long-standing consensual relationship of nearly two years before the relationship turned sour.

However, the judge clarified that only after investigation would the facts be determined conclusively, but at present the materials suggested a consensual relationship rather than criminal conduct thereby, warranting bail to the accused.

"Even if it is assumed that the petitioner is a divorced lady, taking note of the long relationship between the petitioner and the victim, and that she had willingly gone with him to his house and other places and engaged in sexual intercourse, I am of the view that there is an indication of a consensual relationship. Of course, that is a matter to be concluded after the investigation," the Court said.

A case against the accused was registered under Sections 69 (sexual intercourse by employing deceitful means etc), 74 (assault or criminal force to woman with intent to outrage her modest) and 115(2) (punishment for voluntarily causing hurt) of the Bharatiya Nyaya Sanhita (BNS) for sexually exploiting and assaulting the victim, whom he had promised to marry.

The victim, a divorced woman with a seven-year-old child, had alleged that on several occasions, the accused had engaged in intimate relations with her and even offered to take her to Canada but subsequently started avoiding her and blocked her number.

The accused, who was arrested and in custody, approached the Court seeking release.

The Court observed that the victim had entered into a relationship with the accused in 2023 and their acquaintance developed into a relationship where they were intimate with each other on several occasions for almost two years.

It referred to the Supreme Court precedents in Prashant v State of NCT, Delhi and Amol Bhagwan Nehul vs. State of Maharashtra, where it was observed that a consensual relationship turning sour or a broken promise of marriage would not automatically amount to rape and invoking the criminal machinery in such cases could unfairly stigmatise the accused while also burdening the judicial process.

Thus, taking into account the allegations and the legal principles involved, the Court held that the continued custody of the accused was unnecessary.

It allowed his bail application while imposing conditions to ensure that the accused cooperates with the investigation. The Court also directed that he should not interfere with the witnesses or evidence.

The accused was represented by advocates Binu Babukuttan, Aromalunni MS, Ananthakrishnan A, Nima Meriyam Koshy and Saji Kumar PG.

Public prosecutor Sreeja V appeared for the state.

[Read Order]