Kerala High Court Dismisses Petition to Quash Rape Case Proceedings: Matters of Consent and Misconception of Fact Must Be Determined at Trial

Consent or Misconception of Fact? Quashment of Proceedings Requires Trial,” says Kerala High Court

Kerala High Court dismissed a petition filed by Fawas seeking to quash the proceedings against him in a rape case. The Court emphasized that determining whether the sexual relationship was consensual or based on a misconception of fact requires a full trial. Justice A. Badharudeen, delivering the judgment, referred to several Supreme Court precedents to underscore the necessity of evaluating evidence to establish the nature of consent.

The petitioner, Fawas, aged 36, is accused of kidnapping and committing rape on the promise of marriage, as per the prosecution case. The incident, which occurred on August 25, 2021, led to the registration of a crime under Sections 366 and 376 of the Indian Penal Code (IPC) by the Vazhakkad police station, Malappuram. The de facto complainant alleged that Fawas retracted his promise of marriage after engaging in sexual intercourse with her.

The Court examined the legal principles surrounding consent and the vitiation of consent due to a misconception of fact. Referencing the Supreme Court’s decision in Pramod Suryabhan Pawar v. State of Maharashtra [2019 KHC 6829], Justice Badharudeen noted, “There is a distinction between a false promise given on the understanding by the maker that it will be broken and a breach of a promise made in good faith but subsequently not fulfilled.”

The judgment also relied on Sonu @ Subhash Kumar v. State of Uttar Pradesh [2021 (2) KHC 314], where the Supreme Court articulated that “consent” under Section 375 IPC must involve active and reasoned deliberation. For consent to be vitiated by a misconception of fact, it must be proven that the promise of marriage was made in bad faith with no intention of being adhered to at the time it was given.

Justice Badharudeen scrutinized the First Information Statement (FIS) provided by the complainant. According to the FIS, the complainant met Fawas through Facebook in August 2020. The relationship, which began with the promise of marriage, allegedly culminated in sexual intercourse under the assurance of marriage. However, the complainant later discovered that Fawas had married another woman on May 15, 2022.

The Court observed that whether the sexual intercourse was consensual or based on a misconception of fact due to a false promise of marriage are matters that necessitate a trial. “The determination of consent or misconception of fact cannot be conclusively made without evaluating the evidence presented during the trial,” the Court noted.

Justice Badharudeen stated, “In such a case, quashment of the proceedings without adducing evidence could not be considered. Therefore, the prayer for quashment cannot be considered, and as such, the matter shall go for trial.”

The dismissal of Fawas’s petition by the Kerala High Court underscores the judiciary’s commitment to thoroughly investigating allegations of sexual assault, particularly when issues of consent and deception are involved. This judgment reinforces the principle that such matters should be determined through a detailed examination of evidence during a trial, thereby ensuring that justice is served based on factual determinations.

Date of Decision: July 10, 2024

FAWAS VS STATE OF KERALA