It is most vital to note that in a major development with far reaching consequences, the Kerala High Court in a most learned, laudable, landmark, logical and latest judgment titled XXXXX v State of Kerala & anr in Bail Appl. No. 7200 of 2025 and Crime No. 313/2025 of Thamarassery Police Station, Kozhikode and cited in Neutral Citation No.: 2025:KER:45498 that was pronounced just recently on June 24, 2025 while granting anticipatory bail to a 27-year-old man accused of rape minced absolutely just no words to hold in no uncertain terms that the complainant’s statement revealed a prima facie consensual relationship between the two and invoking criminal law under the charge of rape in such circumstances was unwarranted. It was also made absolutely crystal clear by the Court in this leading case that arrest and remand should not become tools of punishment in cases where a romantic relationship later turns sour and rape is alleged. Absolutely right!

It must be also disclosed here that the petitioner was booked under Section 64(1) (punishment for rape) of the Bharatiya Nyaya Sanhita (BNS) for allegedly raping a married woman who is also a third-year medical student in a hotel room near Thamarassery on November 3 and 4, 2024. It is significant to note that the Kerala High Court further underscored on the dire need for judicial caution when dealing with such false allegations, especially when young persons are involved in romantic relationships that end on a bitter note.

What also needs to be taken into account is that while considering the prosecution’s failure to establish the need for custodial interrogation, the Kerala High Court allowed the bail application of the petitioner but with strict conditions and caveat which includes appearance before the Investigating Officer for limited custody interrogation and prohibition from contacting the complainant or tampering with evidence.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Bechu Kurian Thomas of Kerala High Court at Ernakulam sets the ball in motion by first and foremost putting forth in para 1 that:
This bail application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’).

As we see, the Bench discloses in para 2 that:
Petitioner is the accused in Crime No.313 of 2025 of Thamarassery Police Station, Kozhikode, registered for the offence punishable under Section 64(1) of the Bharatiya Nyaya Sanhita, 2023.

Simply put, the Bench points out in para 3 that:
According to the prosecution, the accused had raped the de facto complainant between 03.11.2024 and 04.11.2024 at a hotel room near Thamarassery and thereby committed the offence alleged.

On the one hand, the Bench while dwelling on the petitioner’s version lays bare in para 4 that:
Sri Abdul Nishad, the learned counsel for the petitioner, submitted that the prosecution allegations are totally false and a consensual relationship has been converted into a case of rape without any basis, merely because subsequently the relationship turned sour.

It was also submitted that, even according to the de facto complainant, she is a married lady, who had travelled all the way from Thiruvananthapuram to Kozhikode and then travelled with the petitioner on his scooter and took a room near Thamarassery and stayed with him for the night and on the next day again, took a room in a lodge at Tirur and then returned back to Thiruvananthapuram on 05.11.2024. According to the learned Counsel, the Complaint has been filed after five months of the incident alleging rape, and the allegations are false and the petitioner being a young person of just around 24 years, ought to be protected with an order of pre-arrest bail as otherwise his life itself would be destroyed.

On the other hand, the Bench then states in para 5 that:
Smt. Sreeja V., the learned Public Prosecutor opposed the bail application and submitted that the allegations are serious and custodial interrogation is necessary, especially since the prosecutrix has specifically alleged that the petitioner compelled her to indulge in sexual intercourse without her consent.

To put things in perspective, the Bench envisages in para 6 expounding that:
I have perused the First Information Statement, which is produced as Annexure A as well as the FIR registered on 04.04.2025, which is produced as Annexure B. The statement of the de facto complainant specifically mentions that she is a third year student of a private Medical College and that her marriage had taken place on 16.02.2023, which is still subsisting, though they have decided to part their ways. The de facto complaint stated that in the meantime, she became acquainted with the petitioner through ‘Instagram’ and thereafter continued their relationship through a platform called ‘Snapshot’.

Later, according to the de facto complainant herself, under the pretext of returning home for study leave, she took a train to Kozhikode, where she was picked up by the petitioner and together, they travelled to Wayanad. En route, they took a room at a hotel near Thamarassery and spent a night there. The next day, they travelled to Tirur and stayed in another hotel and on the following day, she returned to Thiruvananthapuram.

Most significantly and most remarkably, the Bench encapsulates in para 7 what constitutes the cornerstone and nucleus of this notable judgment postulating that:
The above statement of the de facto complainant indicates that she went on her own volition to meet the petitioner and also willingly stayed with him in two different hotels. There is nothing prima facie indicative of a rape except for a bald statement that petitioner had indulged in a forceful sexual relationship with her.

When a married lady, on her own volition travelled all the way from Thiruvananthapuram to Kozhikode and willingly stayed with the petitioner in different lodges, that too for two nights, it cannot be assumed that the physical relationship between them was without her consent. It is inconceivable that the de facto complainant had stayed with the petitioner for two nights in two different lodges without being willing for a sexual relationship.

Merely because a consensual relationship turned sour at a later point of time, it cannot be a reason to allege rape. Further, there cannot be a case of deceitfully obtaining consent under a false promise of marriage as the de facto complainant is still in a subsisting marriage. Since prima facie I am satisfied that the statement given by the de facto complainant does not indicate an instance of rape stricto senso, petitioner ought to be protected with an order of pre-arrest bail.

Most forthrightly and most rationally, the Bench underscores in para 8 propounding that:
Rape is a heinous crime and such an allegation, if incurred, can mar a young person’s life forever. The stigma of such an accusation will follow him even if he is later acquitted. The stain on his life will be rendered unerasable if he is arrested and remanded even before he is found guilty. Courts must be cautious when two young people enter into a willing physical relationship and later rape is attributed to their union.

Refusing bail blindly in such cases, without considering the circumstances, can lead to injustice and destroy the young personality. Arrest and remand being a curtailment of the cherished liberty of a person, it must be resorted to only if the circumstances warrant such a course to be adopted. Courts cannot be unmindful of the changing social milieu, while considering the applications for bail from youngsters who are accused of the offence of rape after being in a willing relationship.

While citing a recent and relevant case law, the Bench observes in para 9 that, In this context it is relevant to refer to the decision in Amol Bhagwan Nehul vs State of Maharashtra and Another [2025 SCC OnLine SC 1230], where the Supreme Court observed that a consensual relationship turning sour at a later point of time or partners becoming distant cannot be a ground for invoking the criminal justice machinery of the State and that such conduct not only burdens the Courts, but blots the identity of an individual accused of such a heinous offence.

While citing yet another recent and relevant case law, the Bench then further elucidates in para 10 stating that:
Similarly in the decision in Prashanth v. State of NCT of Delhi (2024 INSC 879), the Supreme Court had observed that a mere breakup of a relationship between a consenting couple cannot result in initiation of criminal proceedings.

In addition, the Bench further while citing yet another recent and relevant case law points out in para 11 that:
In Ashok Kumar v. State of Union Territory Chandigarh, [2024 SCC OnLine SC 274], it has been held that a mere assertion on the part of the State while opposing the plea for anticipatory bail that custodial interrogation is required would not be sufficient and that the State would have to show or indicate more than prima facie case as to why custodial interrogation of the accused is required for the purpose of investigation.

Finally and far most significantly, to put it briefly, the Bench then deems it fit to conclude by directing and holding in para 12 that:
On a consideration of the circumstances arising in the case, this Court is of the view that though the allegations are serious in nature, there is an indication from the statement of the de facto complainant herself that there was a consensual relationship between the accused and the de facto complainant.

In such circumstances, denying bail to the accused is not proper. Further, the State has not been able to convince this Court that custodial interrogation of the petitioner is necessary. Thus, having regard to the nature of the offence and the severity of the punishment, this Court is of the considered view that the petitioner is entitled to be released on pre-arrest bail.

However, for the purpose of investigation, petitioner must subject himself to interrogation and the said period can be treated as limited custody as held in Sushila Aggarwal and Others v. State (NCT of Delhi) and Another [(2020) 5 SCC 1]. We thus see that the application of the petitioner is allowed subject to some conditions which for sake of brevity have not been mentioned here which the petitioner has to comply with fully like appearing before the Investigating Officer from 10 AM to 5 PM on 07.07.2025 and if needed further on 08.07.2025 and shall subject himself to interrogation!

There can be just no gainsaying that it is high time and lawmakers must now definitely amend the rape laws and if a woman has sex with a men without force being used then it should not be termed rape because we are now living in 21st century and not in 17th or 18th century! Why should a woman promptly get ready to have sex with men without marriage and only on promise of marriage surrender her body willingly and later cry rape?

This definitely merits prompt changes so that a woman whether married or unmarried stops having sex with men on any pretext whatsoever without marriage being consummated so that it acts as a strong deterrent to woman not to have sex with any men on any pretext whatsoever and also go a long way in checking misuse of rape laws against men by woman who for years has sex with men enjoying and later suddenly cry rape waking up after a long time and forwards promise of marriage as most favourite excuse for surrendering her body to him!

It merits just no reiteration that the earlier this is done, the better it shall be! This will definitely usher in morality and women will think thousands times before having sex with men without consummation of marriage and will definitely go a long way in nipping in the bud the most regressive practice of women surrendering her body on pretext of marriage for years and later terming it as rape!

It definitely brooks no more delay anymore longer now! It will also go a long way in checking abuse of penal laws meant for safety of women but which in reality are used as potent weapons to extract money from men and to put him in trouble by sending him to jail if he refuses to extract money or toe her line as she wants! This is what I find most unsettling which cannot be ever justified under any circumstances!

In addition, if a woman files false complaints of rape and it is proved that she did it intentionally then definitely she must be jailed for at least few years and also made to pay huge compensation to men so that it acts as a strong deterrent against the growing nefarious tendency of exploiting women safety laws as potent dangerous tools to harass, humiliate and harangue men and extort huge money from them and if they don’t comply then make them suffer huge imprisonment in jail for just no fault of theirs!

The buck must stop now on this count! It is definitely most deeply disappointing that even in new revised penal laws we see no such changes having been made but still these much desired compelling changes can be incorporated in the new revised penal laws also if Parliament and our law makers collectively take decisive action on this count at the earliest! No denying or disputing it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh.