A Married Woman's Consensual Relationship Does Not Attract Section 376 IPC in Absence of False Promise: Kerala High Court Grants Pre-Arrest Bail to Lawyer

Kerala High Court granted pre-arrest bail to Nikhil Narayanan, a lawyer accused of rape under Section 376(2)(n) and criminal intimidation under Section 506 of the Indian Penal Code (IPC). The court concluded that the sexual relationship between the petitioner and the survivor appeared consensual, and no false promise of marriage was made to vitiate the consent, based on the materials presented.

The case stems from a complaint filed by a woman, who was involved in a strained marital relationship and had engaged Nikhil Narayanan as her lawyer in her matrimonial proceedings. The survivor alleged that Narayanan developed a relationship with her, falsely claiming to be a divorcee, and forcefully engaged in sexual relations with her between January 2023 and April 2024. Following the breakdown of their relationship, she lodged an FIR against him in July 2024, accusing him of rape and criminal intimidation.

The petitioner sought pre-arrest bail, asserting that the relationship was consensual and that the delay in filing the FIR raised doubts about the veracity of the allegations.

The primary issue was whether the sexual relationship between the petitioner and the survivor constituted rape under Section 376 IPC, given the survivor's claims that the petitioner had made false promises of marriage.

The petitioner argued that there was no deception, as the survivor was aware of his marital status, and their relationship was consensual. He pointed to inconsistencies in the complaint, including the delay in registering the FIR and the survivor’s continued engagement of the petitioner as her counsel even after the alleged incidents.

The prosecution opposed the bail, arguing that the survivor's delay in filing the FIR was due to fear, as the petitioner was her lawyer. They contended that the petitioner's custodial interrogation was necessary for the investigation, particularly for conducting a potency test.

The court carefully scrutinized the materials, including affidavits and judgments from related matrimonial proceedings. It noted that despite the alleged incidents starting in January 2023, the FIR was only filed in July 2024. The survivor had continued to engage the petitioner as her lawyer during this period, which raised questions about the credibility of her claims.

The court referred to precedents, including Deepak Gulati v. State of Haryana and Pramod Suryabhan Pawar v. State of Maharashtra, to emphasize the distinction between consensual sex and rape. It held:

"A married woman having consensual sex with a man, knowing that he is married, cannot claim inducement of a false promise of marriage. The offence of rape under Section 376 cannot be attracted in such a scenario."

The court found that there was no prima facie evidence to support the claim that the petitioner had made false promises of marriage. Additionally, the court expressed concern over the unexplained delay in filing the complaint, which further supported the petitioner's argument.

The Kerala High Court granted pre-arrest bail to Nikhil Narayanan, citing the consensual nature of the relationship and the absence of a false promise of marriage. The petitioner was directed to cooperate with the investigation and comply with certain conditions, including surrendering before the investigating officer and submitting to required medical examinations.

Date of Decision: October 7, 2024

Nikhil Narayanan vs. State of Kerala​.