Shashank C v. State of Karnataka

Karnataka HC3 Jul 2025CRL.P/2027/2025

Case brief

AI extract

What is this about?

NC: 2025:KHC:24006 | CRL.P No. 2027 of 2025 | Karnataka HC (M. Nagaprasanna J.) | 03-07-2025 | Quashing of rape case under S.376 IPC (with 420, 323, 504, 109 r/w 34 IPC) arising from failed betrothal after ~6-year consensual relationship; mother and neighbour of accused also exonerated; breach of promise vs false promise; abuse of process; S.482 Cr.P.C./S.528 BNSS inherent powers; Dhruvaram Murlidhar Sonar; Shambhu Kharwar; Naim Ahamed; Lalu Yadav; Mahesh Damu Khare.

What did the court decide?

Criminal petition allowed; entire proceedings in C.C.No.40547/2024 arising out of Crime No.246/2024, Basaveshwara Nagar Police Station, Bengaluru, quashed against the petitioners. ¶302

Shashank C Vs State of Karnataka — Cheating and Forgery | Karnataka HC (2025)

What the court decided

AI extract

Outcome

Criminal petition allowed; entire proceedings in C.C.No.40547/2024 arising out of Crime No.246/2024, Basaveshwara Nagar Police Station, Bengaluru, quashed against the petitioners.

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Issue for consideration

Whether the consensual relationship of the complainant and petitioner No.1 for about six years would amount to the offence of rape under Section 376 of the IPC. +1 more

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Court's answer

Considering the unequivocal facts and the charge-sheet summary on the bedrock of the principles laid down by the Apex Court (Dhruvaram Murlidhar Sonar, Shambhu Kharwar, Naim Ahamed, Lalu Yadav, Mahesh Damu Khare), a prolonged consensual relationship of about six years with marriage negotiations that did not fructify does not prima facie make out rape under Section 376 IPC, and permitting further proceedings against the petitioners would become an abuse of the process of the law.

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Ratio / Principle

Petitioner No.2, the mother of petitioner No.1 who did not encourage the marriage, and petitioner No.3, the neighbour who sat in the marriage talks, having been drawn into the web of crime, further proceedings on the aforesaid facts would result in patent injustice; therefore the Court deemed it appropriate to obliterate the proceedings against all the petitioners.

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Detailed headnote1 paragraphs

Criminal Petition (S.482 Cr.P.C./S.528 BNSS) allowed; proceedings in C.C.No.40547/2024 (Crime No.246/2024, Basaveshwara Nagar P.S., Bengaluru) under Sections 376, 420, 323, 504 and 109 r/w 34 IPC quashed. Complainant and petitioner No.1 were childhood friends with a physical relationship of about six years; marriage talks and betrothal between the families failed, whereupon the complaint was lodged. Holding (M. Nagaprasanna J.): a consensual relationship sustained over years, with marriage negotiations that did not conclude, is at best a breach of promise and not a false promise from inception constituting rape under Section 376 IPC; drawing the petitioner's mother (who opposed the marriage) and the neighbour (who attended the marriage talks) into the crime and permitting further proceedings would be an abuse of process and cause patent injustice. Reliance placed on Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191; Shambhu Kharwar v. State of U.P., 2022 SCC OnLine SC 1032; Naim Ahamed v. State (NCT of Delhi), 2023 SCC OnLine SC 89; Lalu Yadav v. State of U.P., (2024) SCC Online SC 2876; Mahesh Damu Khare v. State of Maharashtra, 2024 SCC Online SC 3471.

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NC: 2025:KHC:24006 CRL.P No. 2027 of 2025

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF JULY, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

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CRIMINAL PETITION NO. 2027 OF 2025

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BETWEEN:

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SHASHANK C

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S/O LATE.D. CHANDRASHEKAR, AGED ABOUT 23 YEARS,

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D. HEMALATHA W/O LATE.D. CHANDRASHEKAR, AGED ABOUT 45 YEARS, RESIDING AT NO.52/1, 3RD CROSS ROAD, 8TH MAIN ROAD, SANEGURUVANAHALLI, BASAVESHWARANAGAR, BENGALURU - 560 079.

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Digitally signed by NAGAVENI Location: High Court of Karnataka

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M.K. JYOTHIKUMAR, S/O M. MARIGOWDA, AGED ABOUT 48 YEARS, R/AT NO.825, 3RD STAGE, 3RD BLOCK, 2ND E CROSS, NEAR NATARAJA KALYANA MANTAPA, BASAVESHWARANAGAR, BENGALURU - 560 079.

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…PETITIONERS

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(BY SRI. B. RAVINDRA, ADVOCATE)

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NC: 2025:KHC:24006 CRL.P No. 2027 of 2025

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HC-KAR

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AND:

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STATE OF KARNATAKA

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BY BASAVESHWARA NAGAR POLICE STATION, REPRESENTED BY SPP.,

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HIGH COURT, BENGALURU - 560 001.

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ROOPAVATHI M D/O MADEVA, AGED ABOUT 26 YEARS, R/AT NO.156/A, 1ST MAIN ROAD, MANJUNATHA NAGAR, RAJAJINAGAR, BENGALURU - 560 010.

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…RESPONDENTS

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(BY SRI. B.N. JAGADEESHA, ADDL. SPP FOR R1; R2 SERVED - UNREPRESENTED)

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THIS CRL.P IS FILED U/S 482 OF CR.PC (FILED U/S 528 BNSS) PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.40547/2024 (CRIME NO.246/2024) BASAVESHWARA NAGAR POLICE STATION, BENGALURU, FOR ALLEGED OFFENCE PUNISHABLE UNDER SECTIONS 376, 420, 323, 504 AND 109 R/W SECTION 34 OF IPC, PENDING ON THE FILE OF THE LEARNED 24TH ADDITIONAL CHEIF METROPOLITAN MAGISTRATE, BENGALURU, IN CC.NO.40547/2024 (CRIME NO.246/2024) FOR ALLEGED OFFENCE PUNISHABLE UNDER SECTIONS 376, 420,323, 504 AND 109 R/W SECTION 34 IPC.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,

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ORDER WAS MADE THEREIN AS UNDER:

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NC: 2025:KHC:24006 CRL.P No. 2027 of 2025

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA

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ORAL ORDER

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The petitioners are accused Nos.1, 2 and 3 are at the doors of this Court calling in question proceedings in C.C.No.40547/2024 arising out of crime No.246/2024 registered for offences punishable under Sections 376, 420, 323, 504 and 109 read with Section 34 of the Indian Penal Code, 1860 ('the IPC' for short).

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Heard Shri B. Ravindra, learned counsel appearing for the petitioners and Shri B.N. Jagadeesha, learned Additional Special Public Prosecutor appearing for respondent No.1.

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The facts in brief germane are as follows:

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Respondent No.2 is the complainant. It is the case of the complainant so as the case of the prosecution that petitioner No.1 and the complainant were acquaintances for 8 years and have had relationship for over 8 years and the relationship being physical, as well. The talks of marriage take place between the families of both the petitioners and the complainant. The betrothal ceremony is also performed. The betrothal ceremony did not lead to the logical conclusion of

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4 - NC: 2025:KHC:24006 CRL.P No. 2027 of 2025

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HC-KAR

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marriage between the two, on the score of certain differences of opinion on manifold circumstances between the families of petitioner No.1 and the complainant. On the alleging breach of marriage, the complainant registers a crime on 29.06.2024 for the aforesaid offences of rape and criminal intimidation. Petitioner No.1 being in relationship with the complainant is not the sole person drawn into the web of proceedings, the mother of petitioner No.1 and the neighbour is also drawn into the web of crime. The police conduct investigation in the aforesaid crime and file a charge sheet against these accused. The filing of the charge sheet is what has driven the petitioners to this Court in the subject petition.

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The learned counsel appearing for the petitioners would submit that the complainant and petitioner No.1 were childhood friends and therefore, the friendship had blossomed into relationship and the relationship into a physical relationship, as well. He would submit that on such score, breach of promise of marriage cannot result in an offence under Section 376 of the IPC for rape. He would further contend that

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NC: 2025:KHC:24006 CRL.P No. 2027 of 2025

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HC-KAR

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the other offences laid against the petitioners are also frivolous based on no content.

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The complainant though served long ago has remained unrepresented. Two or three opportunities were granted awaiting the appearance, but even today the complainant is not represented. Therefore, the learned Additional Special Public Prosecutor for the State is heard.

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The learned Additional Special Public Prosecutor would take this Court through the summary of the charge sheet as obtaining in column No.17 to contend that the police after investigation have filed a charge sheet. The charge sheet would indicate that the offences are committed by petitioner No.1, at least the offences punishable under Sections 376 and 504 of the IPC or even under Sections 323 and 420 of the IPC and would therefore, submit that the proceedings must be permitted to be continued against these petitioners.

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I have given my anxious consideration to the submissions made by the respective learned counsel and have pursued the material available on record.

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HC-KAR

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The afore-narrated factum of relationship between petitioner No.1 and the complainant is a matter of record. The complaint itself narrates that petitioner No.1 and the complainant were childhood friends and had a relationship between them since 2016 or 2017, as the case would be. The talks of marriage also trigger between the families of petitioners No.1 and the complainant, but did not end in marriage. Therefore, the physical relationship between petitioner No.1 and the complainant for over 6 years is now projected to become a crime for offence of rape. Since the complainant has triggered the registration of the crime, I deem

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it appropriate to notice the complaint. It reads as follows:

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" UÉ, ��ೕ� �ಾಣ��ಾ�ಗಳ�, ಬಸ�ೇಶ�ರನಗರ ��ೕ� �ಾ�ೆ , ಬಸ�ೇಶ�ರ ನಗರ, �ೆಂಗಳ�ರು.

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ಇಂದ, ರೂ�ಾವ ಎಂ "# $ಾ%ೇವ, ವಯಸು' 26 ವಷ), *ಾ+ಗ,ೆ-., ªÁ¸À: £ÀA:.156/J, 1st Main Road, ªÀÄAdÄ£ÁxÀ£ÀUÀgÀ, ¨ÉA; 560010

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HC-KAR

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ªÉÆ: 9606748512/9597312569.

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HC-KAR

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ఇం� ರೂ�ಾವ (ಸL/-)

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NC: 2025:KHC:24006 CRL.P No. 2027 of 2025

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HC-KAR

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ಈ Zನ ZTಾಂಕ: 29/06/2024 ರಂದು ಸು$ಾರು 14:00 ಗಂgೆ*ೆ �yತ ದೂರನು0 vÀj¹PÉÆAqÀÄ oÁuÁ ªÉÆ ¸A 246/2024 PÀ®A 500, 376, 420, 109, 323, 504 8/2 34ಐ{5 ರ�S %ಾಖ�ಸ=ಾ4%ೆ ."

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The police after investigation filed a charge sheet against

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these petitioners. The summary of the charge sheet as obtained in column No.17, reads as follows:

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�ೇ5ನ ಸಂqಪF, Kಾ8ಾಂಶ

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ನಂತರ ZTಾಂಕ 10.05.2024 ರಂದು �ೆಳೆ , 11.30 ಗಂgೆJಂದ 12.30 ಗಂgೆಯ ನಡು/ನ �ೇUೆಯ�S ಎ1-ಆ8ೋ{ತ �ೆಂಗಳ�ರು ನಗರ, ಬಸ�ೇಶ�ರ ನಗರ ��ೕ� �ಾ�ಾ ಸರಹZOೆ Kೇ�ದ, 8ಾMಾ|ನಗರ, ಮಂಜುTಾಥನಗರ, 1Tೇ <ೖ#, 2Tೇ �ಾB�, ಮTೆ ನಂ. 156/ ಎರ3Tೇ ಮಹ;ಯ Kಾq-1 ರವರ ಮTೆೆ Cೋ4 ಮದು�ೆ ಬೆj $ಾ?ಾTಾಡ �ೇಕು ಎಂದು CೇKಾq-1 ರವರ ಇAೆ}*ೆ /ರುದ~�ಾ4 =ೈಂ4ಕ ಸಂ�ೋಗ $ಾ;, ಈ /ಷಯ�ೆ6 kಂ?ೆ $ಾಡ �ೇಡ ಮದು�ೆ ಆಗು?ೆFೕTೆ :ೕಸ $ಾಡುವ3ZಲS ಎಂದು ನಂ"5ದುO ಅಲS%ೆ ಈ /ಷಯವನು0 ��ೕಸ�*ೆ ಅಥ�ಾ 2ಾ�*ಾದರು5ದ8ೆ ಮದು�ೆ $ಾ;�ೋಳ�dವ3ZಲS ಎಂದು ಎ1- ಆ8ೋ{ತ Kಾq-1 ರವ�*ೆ Cೆದ�5ರು?ಾFTೆ .

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ನಂತರ ZTಾಂಕ:03.06.2024 ರಂದು ಎ1 �ಂದ ಎ3 ರವ8ೆ4ನ ಆ8ೋ{ಗಳ� Kಾq-1 ರವರ ಮTೆೆ Cೋ4 ಮದ�ೆಾ4 ಹಣ �ೇದುO Kಾq-1 ರವರು ವರದ•�ೆ �ೊಡುವ 5r ಯ�S ಇಲS ಎಂದು CೇದುO, ಇ%ೇ Tೆಪ $ಾ;�ೊಂಡು ಎ1-ಆ8ೋ{*ೆ ಎ2 ಮತುF ಎ3 ಆ8ೋ{ಗಳ� Kಾq-1 ರವರ Mೊ?ೆ ಮದು�ೆ $ಾ;�ೊಳd�ೇಡ ಎಂದು 5, Kಾq-1 ರವ�*ೆ ಅ�ಾಚ@�ಾ4 �ೈದು, ಎ2 ಆ8ೋ{?ೆB, Kಾq-1 ರವ�*ೆ �ೈಗಂದ ಹ=ೆ $ಾ; ಮದು�ೆ $ಾ;�ೊಳ�dವ3ZಲS ಎಂದು `5ರು?ಾF8ೆ ,

¶85

ಈ %ೋtಾ8ೋಪಣ ಪ-.ಯ�S ನಮೂZ5ರುವ ಎ1 ಆ8ೋ{ತ ಮದು�ೆ $ಾ;�ೊಳdವ3%ಾ4 Kಾq-1 ರವರನು0 ನಂ€5, Kಾq- 1 ರವರ ಇAೆ}*ೆ /ರುದ~ �ಾ4 =ೈಂ4ಕ ಸಂ•ೋಗ $ಾ; ಮದು�ೆ $ಾ;�ೊಳ�dವ :ೕಸ $ಾ;ರುವ3ದು ಮತುF ಎ1-ಆ8ೋ{*ೆ ಎ2 ಮತುF ಎ3 DgÉÆÃ¦ ªÀÄzÀÄªÉ ªÀiÁrPÉÆ¼ÀèzÀAvÉ PÀÄªÀÄäPÀÄÌ ¤Ãr Kಾq-1 ರವ�*ೆ ಅ�ಾಚ@�ಾ4 �ೈದು, ಎ2 ಆ8ೋ{?ೆB, Kಾq-1 ರವ�*ೆ �ೈಗಂದ ಹ=ೆ $ಾ;ರುವ3 Kಾ‚ಾ%ಾರಗಂದ Kಾ€?ಾ4ರುವ3ದ�ಂದ ªÉÄÃ®ÌAqÀ PÀ®AUÀ¼À C£ÀéAiÀÄ DgÉÆÃ¦UÀ¼À «gÀÄzÀÝ %ೋtಾ8ೋಪಣ ಪ-.ಯನು0 ಸ�Sಸ=ಾ4%ೆ .

¶86

A perusal at the complaint or summary of the charge sheet would unmistakably indicate that the relationship of love between petitioner No.1 and the complainant was for over 6 years. The complaint would narrate that the petitioner No.1 was 18 years old, at the time of friendship with the complainant. The complainant then gets married to someone and the husband of the complainant dies. After the tragedy, the relationship between petitioner No.1 and the complainant gets rekindled and goes on for another 5 years, thereafter. The talks of marriage, also take place between the families of

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petitioner No.1 and the complainant. The talks of marriage fail and the complainant, trails to the jurisdictional police station to register the complaint on the offence of rape.

¶90

The issue now would be, whether the consensual relationship of the complainant and petitioner No.1 for six years, would amount to the offence of rape under Sections 376 of the IPC. The consideration of the issue need not detain this Court for long, or delve deep into the matter. The Apex Court in the case of DHRUVARAM MURLIDHAR SONAR V. STATE OF

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MAHARASHTRA¹ , has held as follows:

¶92

“…. …. ….

¶93

20. With this factual background, the Court held that the girl had taken a conscious decision, after active application of mind to the events that had transpired. It was further held that at best, it is a case of breach of promise to marry rather than a case of false promise to marry, for which the accused is prima facie accountable for damages under civil law. It was held thus : (Deelip Singh [Deelip Singh v. State of Bihar, (2005) 1 SCC 88 : 2005 SCC (Cri) 253] , SCC p. 106, para 35)

¶94

“35. The remaining question is whether on the basis of the evidence on record, it is reasonably possible to hold that the accused with the fraudulent intention of inducing her to sexual intercourse, made a false promise to marry. We have no doubt that the accused did hold out the promise to marry her and that was the predominant reason for the victim girl to agree to the sexual intimacy with him. PW 12 was also too keen to marry him as she said so specifically. But we

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1 (2019) 18 SCC 191

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find no evidence which gives rise to an inference beyond reasonable doubt that the accused had no intention to marry her at all from the inception and that the promise he made was false to his knowledge. No circumstances emerging from the prosecution evidence establish this fact. On the other hand, the statement of PW 12 that “later on”, the accused became ready to marry her but his father and others took him away from the village would indicate that the accused might have been prompted by a genuine intention to marry which did not materialise on account of the pressure exerted by his family elders. It seems to be a case of breach of promise to marry rather than a case of false promise to marry. On this aspect also, the observations of this Court in Uday case [Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775] at para 24 come to the aid of the appellant.”

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21. In Deepak Gulati v. State of Haryana [Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660] , the Court has drawn a distinction between rape and consensual sex. This is a case of a prosecutrix aged 19 years at the time of the incident. She had an inclination towards the accused. The accused had been giving her assurances of the fact that he would get married to her. The prosecutrix, therefore, left her home voluntarily and of her own free will to go with the accused to get married to him. She called the accused on a phone number given to her by him, to ask him why he had not met her at the place that had been pre-decided by them. She also waited for him for a long time, and when he finally arrived, she went with him to a place called Karna Lake where they indulged in sexual intercourse. She did not raise any objection at that stage and made no complaints to anyone. Thereafter, she went to Kurukshetra with the accused, where she lived with his relatives. Here too, the prosecutrix voluntarily became intimate with the accused. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the accused at Birla Mandir there. Thereafter, she even proceeded with the accused to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married at the court in Ambala. At the bus station, the accused was arrested by the police. The Court held that the physical relationship between the parties had clearly developed with the consent of the prosecutrix as

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there was neither a case of any resistance nor had she raised any complaint anywhere at any time, despite the fact that she had been living with the accused for several days and had travelled with him from one place to another. The Court further held that it is not possible to apprehend the circumstances in which a charge of deceit/rape can be levelled against the accused.

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22. Recently, this Court, in Shivashankar v. State of Karnataka [Shivashankar v. State of Karnataka, (2019) 18 SCC 204] , disposed of on 6-4-2018, has observed that it is difficult to hold that sexual intercourse in the course of a relationship which has continued for eight years is “rape”, especially in the face of the complainant's own allegation that they lived together as man and wife. It was held as under: (Shivashankar case [Shivashankar v. State of Karnataka, (2019) 18 SCC 204] , SCC p. 205, para 4)

¶106

“4. In the facts and circumstances of the present case, it is difficult to sustain the charges levelled against the appellant who may have possibly, made a false promise of marriage to the complainant. It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as “rape” especially in the face of the complainant's own allegation that they lived together as man and wife.”

¶107

23. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control,

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was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC.

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24. In the instant case, it is an admitted position that the appellant was serving as a Medical Officer in the Primary Health Centre and the complainant was working as an Assistant Nurse in the same health centre and that she is a widow. It was alleged by her that the appellant informed her that he is a married man and that he has differences with his wife. Admittedly, they belong to different communities. It is also alleged that the accused/appellant needed a month's time to get their marriage registered. The complainant further states that she had fallen in love with the appellant and that she needed a companion as she was a widow. She has specifically stated that “as I was also a widow and I was also in need of a companion, I agreed to his proposal and since then we were having love affair and accordingly we started residing together. We used to reside sometimes at my home whereas sometimes at his home”. Thus, they were living together, sometimes at her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time and enjoyed each other's company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against

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the appellant. We are also of the view that since the complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained.

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25. Further, the FIR nowhere spells out any wrong committed by the appellant under Section 420 IPC or under Section 3(1)(x) of the SC/ST Act. Therefore, the High Court was not justified in rejecting the petition filed by the appellant under Section 482 CrPC.”

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(Emphasis supplied)

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Following the said judgment, the Apex Court in the case of

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SHAMBHU KHARWAR v. STATE OF UTTAR PRADESH² has

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held as follows:

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“…. …. ….

¶123

8. In Bhajan Lal (supra) this Court formulated the parameters in terms of which the powers in Section 482 of CrPC may be exercised. While it is not necessary to revisit all these parameters again, a few that are relevant to the present case may be set out. The Court held that quashing may be appropriate:

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“102.(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2).

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2 2022 SCC OnLine SC 1032

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[…]

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(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

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9. In Dhruvaram Murlidhar Sonar v. State of Maharashtra, a two Judge Bench of this Court while dealing with similar facts as the present case reiterated the parameters laid down in Bhajan Lal (supra) held that:

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“13. It is clear that for quashing the proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of its inherent powers.”

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(emphasis supplied)

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10. An offence is punishable under Section 376 of the IPC if the offence of rape is established in terms of Section 375 which sets out the ingredients of the offence. In the present case, the second description of Section 375 along with Section 90 of the IPC is relevant which is set out below.

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“375. Rape - A man is said to commit “rape” if he - […] under the circumstances falling under any of the following seven descriptions Firstly …

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Secondly. - Without her consent.

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[…]

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Explanation 2. - Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal communication, communicates willingness to participate in the specific sexual act:

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Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

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xxx

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90. Consent known to be given under fear or misconception - A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or…”

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11. In Pramod Suryabhan Pawar v. State of Maharashtra ,⁷ a two Judge Bench of this Court of which one of us was a part (D.Y. Chandrachud J.), held in Sonu @ Subhash Kumar v. State of Uttar Pradesh ,⁸ observed that:

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“12. This Court has repeatedly held that consent with respect to Section 375 of the IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action…

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[…]

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14. […] Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled…

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[…]

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16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman's “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the

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maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception of fact” where such misconception was the basis for her choosing to engage in the said act…

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[…]

¶156

18. To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.

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(emphasis supplied)

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12. In the present case, the issue which had to be addressed by the High Court was whether, assuming all the allegations in the charge-sheet are correct as they stand, an offence punishable under Section 376 IPC was made out. Admittedly, the appellant and the second respondent were in a consensual relationship from 2013 until December 2017. They are both educated adults. The second respondent, during the course of this period, got married on 12 June 2014 to someone else. The marriage ended in a decree of divorce by mutual consent on 17 September 2017. The allegations of the second respondent indicate that her relationship with the appellant continued prior to her marriage, during the subsistence of the marriage and after the grant of divorce by mutual consent.

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13. In this backdrop and taking the allegations in the complaint as they stand, it is impossible to find in the FIR or in the charge-sheet, the essential ingredients of an offence under Section 376 IPC. The

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crucial issue which is to be considered is whether the allegations indicate that the appellant had given a promise to the second respondent to marry which at the inception was false and on the basis of which the second respondent was induced into a sexual relationship. Taking the allegations in the FIR and the charge-sheet as they stand, the crucial ingredients of the offence under Section 375 IPC are absent. The relationship between the parties was purely of a consensual nature. The relationship, as noted above, was in existence prior to the marriage of the second respondent and continued to subsist during the term of the marriage and after the second respondent was granted a divorce by mutual consent.

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14. The High Court, in the course of its judgment, has merely observed that the dispute raises a question of fact which cannot be considered in an application under Section 482 of CrPC. As demonstrated in the above analysis, the facts as they stand, which are not in dispute, would indicate that the ingredients of the offence under Section 376 IPC were not established. The High Court has, therefore, proceeded to dismiss the application under Section 482 of CrPC on a completely misconceived basis.

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15. We, accordingly allow the appeal and set aside the impugned judgment and order of the High Court dated 5 October 2018 in application u/s 482 No 33999 of 2018. The application under Section 482 of CrPC shall accordingly stand allowed. The Case Crime No 11 of 2018 registered at Police Station Rasra, District Ballia, charge-sheet dated 23 April 2018 in the aforementioned case and the order dated 24 May 2018 in Criminal Case No 785 of 2018 in the Court of the Addl. Chief Judicial Magistrate (First), Ballia taking cognizance of the charge-sheet shall accordingly stand quashed.”

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(Emphasis supplied)

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Further, the Apex Court in the case of NAIM AHAMED v. STATE (NCT OF DELHI)³ , delineating what would be false promise of marriage and a promise of marriage, has held as follows:

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“…. …. ….

¶172

10. It would be germane to note that the basic principles of criminal jurisprudence warrant that the prosecution has to prove the guilt of the accused beyond reasonable doubt by leading cogent evidence, however, considering the ethos and culture of the Indian Society, and considering the rising graph of the commission of the social crime - ‘Rape’, the courts have been permitted to raise a legal presumption as contained in Section 114A of the Indian Evidence Act. As per Section 114A, a presumption could be raised as to the absence of consent in certain cases pertaining to Rape. As per the said provision, if sexual intercourse by the accused is proved and the question arises as to whether it was without the consent of the woman alleged to have been raped, and if she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.

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11. It cannot be gainsaid that a consent given by a person would not be a consent as intended by any Section of the Penal Code, 1860, if such consent was given by the person under the fear of injury, or under a misconception of fact as contemplated in Section 90 IPC. Further, Section 375 also describes certain acts which if committed by the accused under the circumstances mentioned therein, as the commission of ‘Rape’, even though committed with the consent of the prosecutrix. In our opinion, the expression “misconception of fact” contained in Section 90 IPC is also required to be appreciated in the light of the Clauses - contained in Section 375 IPC, more particularly the Clauses -

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3 2023 SCC OnLine SC 89

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Thirdly, Fourthly and Fifthly thereof, when the accused is charged for the offence of ‘rape’. The circumstances described in the said three Clauses are wider than the expression “misconception of fact”, as contemplated in Section 90 of IPC. Section 375 describes seven circumstances under which the ‘rape’ could be said to have been committed. As per the Clause - Thirdly, a rape could be said to have been committed, even with her consent, when the consent of the prosecutrix is obtained by putting her or any person in whom she is interested in fear of death or of hurt. As per the Clause - Fourthly, with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married; and as per the Clause - Fifthly, with her consent when at the time of giving the consent, the prosecutrix by reason of unsoundness of mind or intoxication or the administration of stupefying or unwholesome substance by the accused or through another, she is unable to understand the nature and consequences of that to which she gives consent. Thus, apart from the prosecutrix being under the misconception of fact as contemplated in Section 90, her consent would be treated as ‘no consent’ if she had given her consent under any of the circumstances mentioned in Section 375 of IPC.

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12. The exposition of law in this regard is discernible in various decisions of this Court, however the application of such law or of such decisions would depend upon the proved facts in each case, known as legal evidence. The ratio laid down in the judgments or the law declared by this Court do provide the guidelines to the judicial mind of the courts to decide the cases on hand, but the courts while applying the law also have to consider the evidence before them and the surrounding circumstances under which the alleged offences are committed by the accused.

¶180

13. A reference of some of the decisions of this Court dealing with the different dimensions and angles of the word ‘consent’ in the context of Section 90 and Section 375 would be beneficial for deciding this appeal.

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14. In Uday v. State of Karnatak a⁴ , the prosecutrix aged about 19 years had given her consent for having a sexual intercourse with the accused with whom she was deeply in love, and it was alleged by the prosecution that the prosecutrix continued to meet the accused as the accused had given her a promise to marry her on a later date. The prosecutrix became pregnant and the complaint was lodged on failure of the accused to marry her. This Court while holding that under the circumstances, the consent could not be said to have been given under a misconception of fact under section 90 of IPC, held in para 21 and 23 as under:—

¶185

“21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.

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22. -xxx- xx -

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23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family

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members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.”

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15. In Deelip Singh alias Dilip Kumar v. State of Bihar (supra), this Court after discussing various earlier decisions of this Court and other High Courts, further explained the observations made in Uday case (supra) and observed as under:—

¶192

“28. The first two sentences in the above passage need some explanation. While we reiterate that a promise to marry without anything more will not give rise to “misconception of fact” within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause secondly. This is what in fact was stressed by the Division Bench of the Calcutta High Court in the case of Jayanti Rani Panda [1984 Cri LJ 1535 : (1983) 2 CHN 290 (Cal)] which was approvingly referred to in Uday case [(2003) 4 SCC 46 : 2003 SCC (Cri) 775 : (2003) 2 Scale 329]. The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end (Cri LJ p. 1538, para 7) — “unless the court can be assured that from the very inception the accused never really intended to marry her”. (emphasis supplied) In the next para, the High Court referred to the vintage

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decision of the Chancery Court which laid down that a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an action of deceit can be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu case [ILR (1913) 36 Mad 453 : 15 Cri LJ 24] (vide passage quoted supra). By making the solitary observation that “a false promise is not a fact within the meaning of the Code”, it cannot be said that this Court has laid down the law differently. The observations following the aforesaid sentence are also equally important. The Court was cautious enough to add a qualification that no straitjacket formula could be evolved for determining whether the consent was given under a misconception of fact. Reading the judgment in Uday case [(2003) 4 SCC 46 : 2003 SCC (Cri) 775 : (2003) 2 Scale 329] as a whole, we do not understand the Court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accused's intention to marry cannot be ruled out.”

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16. In Deepak Gulati v. State of Haryan a⁵ , this Court gave one more dimension of the word ‘consent’ by distinguishing ‘Rape’ and ‘consensual sex’ and observed as under:

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“21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the

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accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.

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22. xxxxx

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23. xxxxx

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24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term “misconception of fact”, the fact must have an immediate relevance”. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her”.

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17. Again in Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra (supra), this Court interpreting the Section 90 and the Clause - Secondly in Section 375 of IPC, observed as under:—

¶207

“ 23. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not

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fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC.”

¶211

18. Now, in the instant case, having regard to the statutory provisions and their interpretations by this Court in various judgments, one may be tempted to hold the appellant-accused guilty of the offence under Section 376 IPC as has been done by the Sessions Court and the High Court, however, on the closer scrutiny of the evidence on record, we find that it was fallacy on the part of the courts below to hold the appellant guilty under Section 376 IPC.

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19. After duly examining the record in the light of the submissions made by the learned counsels for the parties, following facts have emerged:—

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(i) Prosecutrix was a married woman having three children.

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(ii) Accused was staying in a tenanted premises situated in front of the house of the prosecutrix.

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(iii) Though initially hesitant, the prosecutrix developed liking for the accused, and both started having sexual relationship with each other.

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(iv) The prosecutrix delivered a male child on 28/10/2011 from the loin of the accused.

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(v) The prosecutrix went to the native place of the accused in 2012 and came to know that he was a married man having children.

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(vi) The prosecutrix still continued to live with the accused in separate premises.

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(vii) The prosecutrix and her husband took divorce by mutual consent in 2014 and thereafter prosecutrix permanently left her three children with her husband.

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(viii) The prosecutrix lodged the complaint on 21^st March, 2015 alleging that she had consented for sexual relationship with the accused as the accused had promised her to marry and subsequently did not marry.

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20. The bone of contention raised on behalf of the respondents is that the prosecutrix had given her consent for sexual relationship under the misconception of fact, as the accused had given a false promise to marry her and subsequently he did not marry, and therefore such consent was no consent in the eye of law and the case fell under the Clause - Secondly of Section 375 IPC. In this regard, it is pertinent to note that there is a difference between giving a false promise and committing breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceited the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise. So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376. As stated earlier, each case would depend upon its proved facts before the court.”

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(Emphasis supplied)

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The said judgment is later followed by the Apex Court in the case of LALU YADAV Vs. STATE OF U.P.⁴ wherein the Apex Court holds as follows:

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“…. …. ….

¶231

13. The decision in “XXXX” v. State of Madhya Prades h⁶ , also assumes relevance in the contextual situation. This court took into consideration an earlier decision of this Court in Naim Ahamed v. State (NCT of Delhi)⁷ , where the allegation was one of alleged rape on false promise of marriage, made five years after the complainant and the accused started having relations and even got pregnant from the accused, of course when she was having a subsisting marriage, the Court found that there cannot be any stretch of imagination that the prosecutrix had given her consent for sexual relationship under misconception. Having considered the said decision and finding identity in facts, this court in the decision reported in (2024) 3 SCC 496 reversed the order impugned therein dismissing the petition filed under Section 482, Cr. P.C. for quashment of FIR and allowed the appeal by setting aside the impugned order and quashing the subject FIR.

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14. Now, having bestowed our anxious consideration to the decisions referred supra with reference to the factual situations obtained in the case at hand, we are of the considered view that the High Court has palpably gone wrong in not considering the question whether the allegations in the complaint reveals prima facie case that the complainant had given her consent for the sexual relationship with the appellant under misconception of fact, as alleged, or whether it reveals a case of consensual sex. Firstly, it is to be noted that the subject FIR itself would reveal that there occurred a delay of more than 5 years for registering the FIR;

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4 (2024) SCC Online SC 2876

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secondly, the very case of the complainant, as revealed from the FIR, would go to show that they lived for a long period as man and wife and thirdly, the facts and circumstances obtained from the subject FIR and other materials on record would reveal absence of a prima facie case that the complainant viz., respondent No. 4 had given her consent for sexual relationship with the appellant under misconception of fact. At any rate, the allegations in the FIR would not constitute a prima facie case of false promise to marry from the inception with a view to establish sexual relationship and instead they would reveal a prima facie case of long consensual physical relationship, during which the complainant addressed the appellant as her husband. Moreover, it is also the case of the complainant, revealed from the subject FIR and the other materials on record that she went along with the appellant to Varanasi with the knowledge of her family and stayed with him in hotels during such visits. The subsequent refusal to marry the complainant would not be sufficient, in view of the facts and circumstances obtained in the case at hand, by any stretch of imagination to draw existence of a prima facie case that the complainant had given consent for the sexual relationship with the appellant under misconception of fact, so as to accuse the appellant guilty of having committed rape within the meaning of Section 375, IPC.

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15. The long and short of the above discussion is that the case at hand is a befitting case where the High Court should have exercised the power available under Section 482, Cr. P.C. to prevent abuse of the process of the Court. Now that the allegation of offence under Section 313, IPC is omitted, there is absolutely no prima facie case for proceeding further against the appellant on the allegation of commission of offence punishable under Section 376, IPC. We are of the considered view that the High Court should have exercised its inherent power.”

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(Emphasis supplied)

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The Apex Court in a later Judgment in the case of MAHESH DAMU KHARE Vs. STATE OF MAHARASHTRA⁵ ,

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holds that mere break up between the couple, who were in a relationship for a long time, cannot result in the offence of rape under Section 376 of the IPC. The Court holds as follows:-

¶245

“….

¶246

19. Section 375 of the IPC clearly postulates that a person is said to have committed rape if he performs any of the sexual acts mentioned under sub-clauses (a), (b), (c) and (d) without the consent of the woman. As mentioned above, in terms of Section 90 of the IPC, if the consent is given under a misconception of fact, such a consent is no consent in the eyes of law and cannot be considered to be wilful and voluntary consent.

¶247

20. Keeping this aspect in mind as to what amounts to consent with reference to Section 375 of the IPC, this Court has examined and considered in a number of cases that if the person acts with an active understanding of the circumstances, actions and consequences of the act, it would indicate the presence of consent. It was observed in the case of Shambhu Kharwar v. State of Uttar Prades h⁴ as follows:—

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“11. In Pramod Suryabhan Pawar v. State of Maharashtra (2019) 9 SCC 608, a two Judge Bench of this Court of which one of us was a part (D.Y. Chandrachud J.), held in Sonu @ Subhash Kumar v. State of Uttar Pradesh (2021) 18 SCC 517, observed that:

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“12. This Court has repeatedly held that consent with respect to Section 375 of the IPC involves an active understanding of the

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circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action…

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[…]

¶256

[…] Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled…

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[…]

¶258

Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman's “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception of fact” where such misconception was the basis for her choosing to engage in the said act…

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[…]

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To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.

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(emphasis supplied)

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21. The complainant had taken the plea that the appellant had physical relationship with her against her consent by making a false promise that he would marry her. In this regard, it has to be considered whether making a false promise to marry amounts to an offence. If a false promise of marriage is made to a woman by a man, thus deceiving the woman leading her to engage in sexual relations, it may amount to misconception of fact, in which case the consent given by the woman may be vitiated. In this regard one may refer to the decision of this Court in Niam Ahmed v. State (NCT of Delhi )⁵ ,

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“20. The bone of contention raised on behalf of the respondents is that the prosecutrix had given her consent for sexual relationship under the misconception of fact, as the accused had given a false promise to marry her and subsequently he did not marry, and therefore such consent was no consent in the eye of law and the case fell under the Clause - Secondly of Section 375 IPC. In this regard, it is pertinent to note that there is a difference between giving a false promise and committing breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceited the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise. So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376.”

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22. In our view, if a man is accused of having sexual relationship by making a false promise of marriage and if he is to be held criminally liable, any such physical relationship must be traceable directly to the false promise made and not qualified by other circumstances or consideration. A woman may have reasons to have physical relationship

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other than the promise of marriage made by the man, such as personal liking for the male partner without insisting upon formal marital ties. Thus, in a situation where physical relationship is maintained for a prolonged period knowingly by the woman, it cannot be said with certainty that the said physical relationship was purely because of the alleged promise made by the appellant to marry her. Thus, unless it can be shown that the physical relationship was purely because of the promise of marriage, thereby having a direct nexus with the physical relationship without being influenced by any other consideration, it cannot be said that there was vitiation of consent under misconception of fact.

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23. It must also be clear that for a promise to be a false promise to amount to misconception of fact within the meaning of Section 90 of IPC, it must have been made from the very beginning with an intention to deceive the woman to persuade her to have a physical relationship. Therefore, if it is established that such consent was given under a misconception of fact, the said consent is vitiated and not a valid consent. In this regard we may refer to the case of “Deepak Gulati v. State of Haryana”⁶ , in which it was held as follows:

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given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.”

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“24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term “misconception of fact”, the fact must have an immediate relevance”. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.”

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(emphasis supplied)

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24. It may be also noted that there may be occasions where a promise to marry was made initially but for various reasons, a person may not be able to keep the promise to marry. If such promise is not made from the very beginning with the ulterior motive to deceive her, it cannot be said to be a false promise to attract the penal

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provisions of Section 375 IPC, punishable under Section 376 IPC.

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…. …. ….

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29. It will be very difficult to assume that the complainant who is otherwise a mature person with two grown up children, was unable to discover the deceitful behaviour of the appellant who continued to have sexual relationship with her for such a long period on the promise of marriage. Any such mendacious act of the appellant would have been exposed sooner without having to wait for nine years. The inference one can draw under the circumstances is that there was no such false promise made to the complainant by the appellant of marriage by continuing to have physical relationship so as to bring this act within the province of Section 376 IPC and therefore, there was no vitiation of consent under misconception of fact.”

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30. Further, it appears that discontinuance of financial support to the complainant, rather than the alleged resiling from the promise to marry by the appellant appears to be the triggering point for making the allegation by the complainant after a long consensual relationship for about nine years.

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31. In our view if criminality is to be attached to such prolonged physical relationship at a very belated stage, it can lead to serious consequences. It will open the scope for imputing criminality to such long term relationships after turning sour, as such an allegation can be made even at a belated stage to drag a person in the juggernaut of stringent criminal process. There is always a danger of attributing criminal intent to an otherwise disturbed civil relationship of which the Court must also be mindful.

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32. It is evident from the large number of cases decided by this Court dealing with similar matters as discussed above that there is a

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worrying trend that consensual relationships going on for prolonged period, upon turning sour, have been sought to be criminalised by invoking criminal jurisprudence.”

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(Emphasis supplied)

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In the light of the unequivocal facts as narrated hereinabove and the summary of the charge sheet, if considered on the bedrock of the principles laid down by the Apex Court in the aforesaid judgments, permitting further proceedings against the petitioners would become an abuse of the process of the law. Petitioner No.1, who had relationship is drawn into the web of crime. Petitioner No.2, the mother of petitioner No.1, who did not encourage the marriage is drawn into the web of crime and the neighbour, who had sat with petitioner No.1 and petitioner No.2 for talks of marriage is also drawn into the web of crime. If further proceedings on the aforesaid facts is permitted, it would undoubtedly result in patent injustice. Therefore, I deem it appropriate to obliterate the same against these petitioners.

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