RAMACHANDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) In what circumstances does sex on a promise to marry become rape? Does the law postulate determination of the criminality of the sexual act in the context of 'consent' on the premise of inviolability of sexual autonomy? Does law contemplate to categorise a sexual act based on consent only on the understanding of the woman?

(2.) Perhaps we have to answer the above mentioned questions based on the factual background of the case in this appeal which arises from a judgment convicting the appellant for the offence under Sec. 376 of the Indian Penal Code, 1860.

(3.) The appellant has been sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000.00 in the impugned judgment. He has been acquitted for other charges framed against him under Ss. 406 and 420 of the IPC. The appellant had sexual intercourse with the victim on three occasions. The prosecutrix and the accused are relatives. The accused is the son of the prosecutrix's uncle. They were in love for more than 10 years. The case of the prosecutrix, hereinafter referred to as PW1, was that she and the accused married on 3/4/2014 at Manarcaud Temple and thereafter, they went to Kumily, where they pledged her ring and a pair of earrings at Kosamattam Finance. According to PW1, as the accused had no money for registering the marriage, she had pledged the gold ornaments as above. Thereafter, PW1 and the accused stayed at a lodge in Thekkady and therein they had sexual intercourse. It is stated by her that the next morning also, she was physically abused (sexually). The accused then left for Theni for a meeting and asked PW1 to go to his house. PW1 then would say that she was not accepted at the house of the accused and his mother had a quarrel with her. The mother of the accused also demanded 25 sovereigns of gold ornaments and Rs.1,00,000.00. The accused, thereafter, came to his house and since they were not allowed to enter the room, they remained at the sit-out of the house. On that day also, they had physical relationship. This was on 5/4/2014. PW1 and the accused went to the house of PW1 in Kottayam. By that time, the parents of PW1 made a complaint before the Police Station at Vandiperiyar. When the police called the accused, he stated that they were in Kottayam. There also at the house of PW1, the accused had sexual intercourse with PW1. The alleged sexual intercourse occurred between 3/4/2014 and 5/4/2014. The accused married PW3 on 08/04/2014. Though PW1 deposed that she had been physically exploited (rather mentioned as 'physically abused' if translation in vernacular language is made - shaareerikamaayi peedippichu). The case as above would not disclose any violent or forceful sexual act. The charge framed by the Sessions Court reads thus: Firstly, that you on 28th day of May 2012, conducted the engagement of marriage with CW1 and received Rs.25,000.00 and ten sovereigns of gold ornaments from CW1 and thereby committed an offence punishable under Sec. 420 of the Indian Penal Code which is within the cognizance of this Court. Secondly, that you on 3/4/2014 made CW1 to believe that you would marry her and took her to Vandipperiyar and stayed in Room No. 103 of New residency lodge at Thekkadi in Ward No. XI/284 of Kumily Panchayath and had sexual intercourse with CW1 from 3/4/2014 to 5/4/2014 against her will and thereby committed an offence punishable under Sec. 376 of Indian Penal Code. Thirdly, on the same and same time you received the gold ornaments worn by CW1 by misrepresenting her that money is required for registering the marriage and pledged the same and used the money for your own use and thereby committed the offence punishable under Sec. 406 of Indian Penal Code, within the cognizance of this Court. The charge discloses that the accused had sexual intercourse with PW1 from 3/4/2014 to 5/4/2014 against her will. Nevertheless, it has come out from PW1, as well as the findings of the Sessions Court that, this was not a case of forcible sexual act as against her will but a sexual act on a promise to marry where the consent is implicit. We find the charge as framed was defective, but it has not resulted in any form of prejudice to the accused.