Kerala High Court
Xxx vs State Of Kerala on 5 August, 2025
2025:KER:57816
Crl.R.P.No.709/2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
TUESDAY, THE 5TH DAY OF AUGUST 2025 / 14TH SRAVANA, 1947
CRL.REV.PET NO. 709 OF 2023
CRIME NO.2003/2017 OF PALARIVATTOM POLICE STATION, ERNAKULAM
AGAINST THE ORDER DATED 29.04.2023 IN SC NO.945 OF 2021
OF FAST TRACK SPECIAL COURT, ALUVA
REVISION PETITIONER/DE FACTO COMPLAINANT (CW1:
XXXXXXXX
BY ADVS.SRI.M.B.SANDEEP
SHRI.AMAL STANLY
SMT.NEETHA P.G.
SMT.K.P.SREEJA
RESPONDENT/STATE AND ACCUSED:
1 STATE OF KERALA
REPRESENTED BY GOVERNMENT PLEADER,
HIGH COURT OF KERALA,
PIN - 682031
2 SHANI SHOWKATH
AGED 42 YEARS
S/O.SHOWKATH,
PALLIYUDE KIZHAKKETHIL,
MANAKAMKUZHI P.O, MAVELIKKARA,
ALAPPUZHA., PIN - 690558
SRI SUDHEER.G, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 30.07.2025, THE COURT ON 05.08.2025 PASSED THE
FOLLOWING:
2025:KER:57816
Crl.R.P.No.709/2023
-:2:-
ORDER
The de facto complainant in Crime No.2003/2017 of Palarivattom Police Station, has filed this revision petition, challenging the order dated 29.04.2023 of the Fast Track Special Court, Aluva, discharging the accused in the said crime. The offences alleged against the accused were under Sections 376(2)(n), 294(b), 341, 323, 324, 452 & 506 of the Indian Penal Code, 1860 (in short, 'IPC').
2. The prosecution case, in conspectus, is as follows:
The petitioner/de facto complainant was an employee in the supermarket run by the family of the accused. The accused, who belonged to the Muslim community, performed a ceremony of marriage with the de facto complainant on 29.12.2008, at Chottanikkara Temple, after getting a coupon for marriage from the said temple. Thereafter, without registering the above marriage, the accused and the de facto complainant started residing together as husband and wife. In the above wedlock, a child was born to them. At the time of school admission of the above child, there arose some issue with regard to the absence of a marriage certificate between the de facto complainant and the accused. At that time, the accused approached this Court, and consequent to the directions of this Court, the marriage between the de facto complainant and the accused was registered at the Sub Registrar Office concerned. Thereafter, the de facto complainant came to 2025:KER:57816 Crl.R.P.No.709/2023 -:3:- know that the accused was already married to another lady and he was having children in that marriage. When questioned about the above marriage, at a time when the accused was abroad, he threatened the de facto complainant that she and her child would be killed. Thus, the accused is alleged to have committed the aforesaid offences.
3. The Palarivattom Police, after investigation in the crime, had earlier filed a final report in respect of the commission of offences under Sections 406, 354 & 506 IPC against the accused, and it was accepted to files by the Judicial First Class Magistrate Court-IX, Ernakulam, as C.C.No.69/2018. However, upon a complaint preferred by the de facto complainant before the higher police officials, further investigation was conducted, and the investigating agency filed a further report incorporating the offences under Sections 376(2)(n), 294(b), 341, 323, 324, 452 & 506(i) IPC against the accused. The case was thus committed to the Sessions Court and made over for trial before the Special Court (Fast Track), Aluva. The learned Special Judge, after having the preliminary hearing as envisaged under Section 227 of the Code of Criminal Procedure, 1973, found that there are no sufficient grounds to proceed against the accused in connection with the offences alleged in 2025:KER:57816 Crl.R.P.No.709/2023 -:4:- the final report. Accordingly, the learned Special Judge passed the impugned order dated 29.04.2023 discharging the accused.
4. Challenging the aforesaid order, the de facto complainant has come before this Court with this revision petition contending that the learned Special Judge went wrong in arriving at the finding that the offences alleged against the accused are not attracted in this case.
5. Heard the learned counsel for the petitioner, the learned counsel for the accused and the learned Public Prosecutor representing the State of Kerala.
6. The learned counsel for the petitioner/de facto complainant and the learned Public Prosecutor assailed the impugned order of the learned Special Judge on two grounds. Firstly, it is contended by the learned counsel for the petitioner and the learned Public Prosecutor that, going by the definition of rape contained in Section 375 IPC, it could be seen that as per the description 'fourthly' if a man who is not the husband of a lady indulges in sexual relationship with her after making her believe that he is her lawfully married husband, then it would amount to rape. The argument advanced by the learned Public Prosecutor, and the learned counsel for the petitioner, in the above regard, is apparently baseless. This is because of the reason that as per 2025:KER:57816 Crl.R.P.No.709/2023 -:5:- the description 'fourthly' in Section 375 IPC the offence of rape is attracted, if only the lady had extended consent for the sexual relationship believing that the person who is indulging in sexual relationship with her is another man to whom she is or believes herself to be lawfully married. As far as the present case is concerned, the person with whom the de facto complainant had indulged in sexual relationship is the very same person whom she believed to be her husband and lawfully married her. Thus, the contention that the definition of rape in Section 375 of the Indian Penal Code, under the clause 'fourthly', would bring the case under the definition of rape, is totally misconceived. The other ground raised by the de facto complainant and the learned Public Prosecutor to assail the impugned order of the learned Special Judge, is that the consent given by the de facto complainant to have sexual intercourse with her was vitiated due to misconception of facts, and hence the offence of rape is attracted in the facts and circumstances of this case. The argument in the above regard, is also totally unfounded. It is pertinent to note that the de facto complainant who was an employee of the supermarket which was being run by the family of the accused, was fully aware of the fact that the accused belonged to Muslim community. That being so, it cannot be 2025:KER:57816 Crl.R.P.No.709/2023 -:6:- expected that the de facto complainant who belonged to the Hindu community, was under the belief that the ceremony of marriage performed by the accused at Chottanikara Temple, without having been converted to the Hindu community, was a valid marriage. That apart, she cannot say that she was totally unaware of the consequences of the non-registration of the marriage with the accused. Furthermore, it could be seen from the case records that the marriage between the de facto complainant and the accused was subsequently registered as per the directions of this Court in a petition moved by the accused when some issues arose regarding the school admission of the child of the accused and the de facto complainant due to want of marriage certificate. Thus, it could be seen that the accused and the de facto complainant, who were cohabiting for a long period, have been indulging in sexual relationship between them with the belief that they were husband and wife. In that view of the matter, it cannot be said that the consent which the de facto complainant extended to the accused for sexual relationship was vitiated by misconception of facts.
7. In a similar case where the allegation was that the accused indulged in prolonged sexual relationship with the de facto complainant after making her believe that a certificate which he procured from Arya 2025:KER:57816 Crl.R.P.No.709/2023 -:7:- Samaj Mandir amounted to marriage, it has been held by the Hon'ble Supreme Court that no offence of rape would be attracted due to the above sexual relationship between the accused and the de facto complainant. The relevant paragraphs of the judgment of the Hon'ble Supreme Court in Ajeet Singh v. State of U.P. [(2024) 2 SCC 422] wherein the law has been laid down in the above regard, are extracted hereunder:
"11. The allegation in the FIR lodged at the instance of the third respondent is that the appellant maintained a physical relationship with the victim by giving her a false promise of marriage. It is stated that a certificate of marriage was got prepared by the appellant from Arya Samaj Mandir to put pressure on the victim. It is alleged that the appellant left the victim in her house on 22-4-2015 and has never returned to take her back.
12. The notice dated 1-5-2015 issued by the advocate for the victim clearly admits that the marriage between the appellant and the victim was solemnised on 16-2-2015. A copy of the statement of the victim recorded on 23-11-2016 by an officer of Police Station Naka, Lucknow, is placed on record, in which she stated that the appellant forced her to have a physical relationship with her in a hotel in Delhi on 4-12-2014. Thereafter, the physical relationship was maintained by the appellant. She stated that on 16-2-2015, the appellant took her to Arya Samaj Mandir and solemnised the marriage where no other person was present. She stated that thereafter, they stayed in a hotel till 19-2-2015. In March 2015, she stayed with the appellant for three to four days. From the end of April 2025:KER:57816 Crl.R.P.No.709/2023 -:8:- 2015, the appellant stopped attending to her phone calls. Thus, the relationship between the appellant and the victim was a consensual relationship which culminated in the marriage. In the legal notice issued on behalf of the appellant, the factum of marriage was admitted.
13. Therefore, on the face of it, the allegation that the physical relationship was maintained due to false promise given by the appellant to marry, is without basis as their relationship led to the solemnisation of marriage. Therefore, this is a case where the allegations made in the FIR were such that on the basis of the statements, no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the appellant. Therefore, clause (5) of the decision of this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] will apply. Hence, a case was made out for quashing the FIR."
8. Thus, the challenge raised by the petitioner/de facto complainant and the learned Public Prosecutor against the finding of the Special Judge that the offence of rape is not attracted in the facts and circumstances of this case, is totally unsustainable.
9. As regards the other offences alleged against the accused, it has to be stated at the outset that all those offences have been incorporated as incidental to the offence of rape attributed to the accused. For that reason alone, the aforesaid offences cannot be said to have been committed by the accused, since the main accusation levelled against the accused, is found to be false and baseless. That apart, the 2025:KER:57816 Crl.R.P.No.709/2023 -:9:- learned Special Judge, after evaluation of the facts and circumstances of the case, has rightly held that there are nothing brought out to show that the offences under Sections 294(b), 341, 323, 324 & 452 IPC are attracted in the facts and circumstances of this case. As regards the offence under Section 506(i) IPC, the learned Special Judge has rightly observed in the impugned order that the criminal intimidation as contemplated under Section 503 IPC is something which must have an instantaneous effect, and it should have been something committed by the intimidator to give a real fear to the person receiving the same on the other side. It is further observed by the learned Special Judge that the alleged threatening over telephone made by the accused from abroad that he would kill her and her child, cannot be said to have caused instant fear upon the de facto complainant. According to the learned Special Judge, a hypothetical fear as stated by the de facto complainant, is not what is contemplated under Section 503 IPC, and that the imaginary or hypothetical fear inferred by the assertion allegedly made by a man during the course of a heated conversation, that too in the matter relating to the family relationship over telephone, from a far away place, cannot be treated as an intimidation as contemplated under Section 503 IPC. There is absolutely no illegality or impropriety in the 2025:KER:57816 Crl.R.P.No.709/2023 -:10:- aforesaid finding of the learned Special Judge. As a conclusion to the aforesaid discussion, I find that there is absolutely no merit in this revision petition.
In the result, the petition is hereby dismissed.
(Sd/-)
G. GIRISH, JUDGE
DST