Court Holds Consent Not Vitiated by Failed Promise Unless False from Inception; Quashes Proceedings Under Bharatiya Nyaya Sanhita, 2023
In a significant judgment delivered on September 7, 2026, the Kerala High Court quashed a First Information Report (FIR) registered against Zahid Shanavas, holding that a promise to marry, which later fails, does not automatically vitiate consent for sexual intercourse unless it was false from the very beginning and directly influenced the decision to engage in the relationship.
The case arose from allegations that the petitioner, Zahid Shanavas, had sexual intercourse with the de facto complainant after promising to marry her. The complainant had initially been married to another man but obtained a divorce subsequently. The FIR alleged that after learning about the complainant's pregnancy, the petitioner asked her to abort the child and thereby cheated her. The petitioner challenged the FIR under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), seeking quashing of the FIR and all proceedings related to Crime No.219 of 2026 registered at Vazhakkulam Police Station.
Justice Jobin Sebastian, presiding over the case, underscored the limited scope of the inherent jurisdiction of the High Court under Section 528 of the BNSS, which corresponds to Section 482 of the Criminal Procedure Code. The court explained that such power is extraordinary and is to be exercised sparingly, particularly where the allegations do not disclose the commission of any offence or where the continuation of proceedings would amount to abuse of the process of law.
The Court analyzed the facts and the First Information Statement (FIS) and observed that the complainant was still married when the sexual relationship commenced, and there was no specific allegation that the petitioner knew about any pending divorce or that the promise to marry was made without intention to fulfill it. The court emphasized that the mere failure to marry does not imply that consent was obtained by deceit. Instead, the promise must have been false at the inception and directly related to obtaining consent.
Further, the Court referred to the Supreme Court precedent in Mahesh Damu Khare v. State of Maharashtra (2024), reiterating that sustained physical relationships over time undermine the assertion that consent was solely based on a false promise of marriage.
Regarding the allegation of cheating related to the demand for abortion, the Court noted that the FIS did not disclose the essential statutory ingredients to constitute an offence under Section 316(2) of the Bharatiya Nyaya Sanhita, 2023.
Consequently, the Court held that even taking the allegations at their face value, they did not constitute offences punishable under Sections 69 and 316(2) of the Bharatiya Nyaya Sanhita, 2023. Therefore, to prevent misuse of legal processes and uphold justice, the Court quashed the FIR and all further proceedings arising therefrom.
This judgment clarifies the legal position concerning consent obtained by promises of marriage under the new criminal laws enacted by Parliament, highlighting that only a false promise made from the outset to induce consent can vitiate consent in sexual offences.
Bottom Line:
Consent obtained for sexual intercourse based on a promise to marry cannot be treated as vitiated unless it is shown that the promise was false at its inception and directly influenced the decision to engage in the relationship.
Statutory provision(s):
Bharatiya Nyaya Sanhita, 2023 Sections 69, 316(2); Bharatiya Nagarik Suraksha Sanhita, 2023 Section 528
Zahid Shanavas v. State of Kerala, (Kerala) : Law Finder Doc Id # 2975239
