The police, after investigation, have filed a charge sheet. The
marriage. The allegation is that the petitioner has had physical
contended by the State. Whether it does, is what is required to
376(2)(n) of the IPC. The submission is unacceptable, as the
RAMACHANDRA VS. STATE OF KERALA1. The Division
"Understanding the 'consent' of a woman on a promise
to marry:
2022 SCC Online Ker 1652
NC: 2025:KHC-D:4126
6. The consent of a woman on a promise to marry is
an enigma for the prosecution to prove. Consent refers
to the state of mind of both parties in an act. In a sexual
act, if both have understood the nature of the sexual
relationship, consent is implicit in such a relationship.
While considering the relationship, the Court will have to
weigh the position of the accused to control the woman.
It is to be remembered that the statutory provisions of
the offence of rape as understood in the Penal Code,
1860, is not gender neutral. A woman, on a false
promise of marrying and having sexual
relationship with a man, with the consent of the
latter obtained on such false promise, cannot be
punished for rape. However, a man on a false
promise of marrying a woman and having sexual
relationship with the woman would lead to the
prosecution's case of rape. The law, therefore,
creates a fictitious assumption that the man is
always in a position to dominate the will of the
woman. The understanding of consent therefore,
has to be related to the dominant and subordinate
relationship in a sexual act.
7. Section 375 of the IPC states that a man is said to
commit rape if he has had any form of sexual
intercourse without the consent of a woman.
Explanation 2 to Section 375 refers to the form of
expression of 'consent'. It is appropriate to refer to
explanation 2 which reads thus:
"Explanation 2: Consent means an
unequivocal voluntary agreement when the
woman by words, gestures or any form of verbal
or non-verbal communication, communicates
willingness to participate in the specific sexual
act:
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."
8. There cannot be any room for doubt in this
case as to the consent of PW1 for having sexual
intercourse with the accused. PW1 referred to
three incidents of sexual intercourse. First of such
incidents happened in a lodge. She did not raise
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any complaint immediately thereafter. Again, she
had sexual intercourse at the residence of the
accused. The third incident happened at her own
house where also, she did not raise any complaint.
According to her, she was promised by the
accused that he would marry her. She also
deposed about proposing the marriage at the
Manarcaud Temple. But no ceremonies were
conducted to establish legal marriage. She
approached the Chief Judicial Magistrate,
Kottayam, with a complaint. This was forwarded
to the police for investigation. The police
registered an FIR on 18/11/2014.
Consent on misconception of fact:
9. Section 90 of IPC refers to a consent as not
consent intended by any provisions of the Penal Code,
1860. Section 90 reads thus:
"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
Consent of insane person.--if the consent is
given by a person who, from unsoundness of
mind, or intoxication, is unable to understand the
nature and consequence of that to which he gives
his consent; or
Consent of child.--unless the contrary appears
from the context, if the consent is given by a
person who is under twelve years of age."
10. We shall now advert to some of the
precedents before considering the point of guilt of
the accused in this case. In Pramod Suryabhan
Pawar v. State of Maharashtra [(2019) 9 SCC
608], the Apex Court distinguished sexual
relationship based on false promise to marry and a
breach of promise to marry. The Apex Court held
that the offence of rape is not constituted when it
was only a breach of promise to marry. The false
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promise of marriage is explained as a promise not
given in good faith, with no intention of being
adhered to at the time it was given. In Anurag
Soni v. State of Chhattisgarh [(2019) 13 SCC 1] on
a similar line, the Apex Court, noting that the
accused had no intention to marry the prosecutrix,
held that engaging in a physical relationship on
the pretext of marriage, fell in the category of
rape. In Deepak Gulati v. State of Haryana [(2013)
7 SCC 675] the Hon'ble Supreme Court
distinguished rape and consensual sex and held
that "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 made a false promise to
this effect only to satisfy his lust. As the latter
falls within the ambit of cheating or deception."
In Dhruvaram Murlidhar Sonar (Dr.) v. State of
Maharashtra [2019 (1) KHC 403], the Apex Court
held that if the accused had not made a promise
with the sole intention to seduce the prosecutrix
to indulge in sexual act, such an act would not
amount to rape. In State of Uttar
Pradesh v. Naushad [(2013) 16 SCC 651] again
the Hon'ble Supreme Court held that the consent
of the victim obtained by the accused by giving
false promise of marrying her would amount to
committing rape.
11. The false promise of marriage refers to the
state of mind of the accused. The point of guilt is
relatable to the state of mind of the accused at the
time of committing the act of sex. If the accused
had no real intention to marry, it can be easily
concluded that the consent of the victim is a
misconception of fact. The accused might have had
intention to marry but he was not sure whether
the marriage would take place or not. If the
accused had not disclosed full information to the
prosecutrix regarding the factors which would
hamper or hinder the impending marriage with
her, can the Court hold that sexual autonomy had
been violated or not? Had the accused disclosed
information about the chances of marriage, would
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she have consented? If there was no full
disclosure of factors that could have a bearing on
the consent of the woman, can we hold that such
cases fall in the category of breach of promise? We
need to discuss this in detail."
(Emphasis supplied)
The Division Bench of the High Court of Kerala was following
the judgments rendered by the Apex Court, on the issue,
rendered from time to time.
10. The Apex Court, in identical circumstances,
considering the subtle interplay between consensual sex and
rape, has in plethora of judgments, held that it would not
amount to an offence of rape, as alleged under Section
376(2)(n) of the IPC. The other offence is, that of offence of
cheating under Section 417 of the IPC, that would also not get
attracted in the light of those very judgments which the Apex
Court considers on the issue of consensual sex and rape. The
consent in the case at hand is not once, twice or thrice; not for
days or months; but for several years, four years precisely, as
is narrated in the complaint as the two were in love. Therefore,
for four long years, it cannot be said that the consent of a
woman has been taken for having such instances, all along
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against her will. It is the length of the relationship and the acts
in period of such relationship between the two that takes away
the rigor of ingredients of Section 375 of the IPC, for it to
become an offence under Section 376 of the IPC.
11. On the aforesaid facts, it becomes germane to notice
the judgments on the issue. The Apex Court has delineated the
inter-play between the offence of rape and a consensual sexual
relationship, both on the false promise of marriage and promise
of marriage. Therefore, a deeper delving into the issue
becomes unnecessary, suffice to quote the judgments of the
Apex Court. The Apex Court in the case of PRAMOD
SURYABHAN PAWAR v. STATE OF MAHARASHTRA2 has
drawn distinction between rape and consensual sexual
relationships. While delineating inter-play between promise of
marriage and allegation of rape, the Apex Court has held as
follows:
"14. In the present case, the "misconception of fact"
alleged by the complainant is the appellant's promise to
marry her. 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
(2019) 9 SCC 608
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made in good faith but subsequently not fulfilled. In Anurag
Soni v. State of Chhattisgarh [Anurag Soni v. State of
Chhattisgarh, (2019) 13 SCC 1 : 2019 SCC OnLine SC
509], this Court held:
"12. The sum and substance of the aforesaid
decisions would be that if it is established and proved
that from the inception the accused who gave the
promise to the prosecutrix to marry, did not have
any intention to marry and the prosecutrix gave the
consent for sexual intercourse on such an assurance
by the accused that he would marry her, such a
consent can be said to be a consent obtained on a
misconception of fact as per Section 90 IPC and, in
such a case, such a consent would not excuse the
offender and such an offender can be said to have
committed the rape as defined under Sections 375
IPC and can be convicted for the offence under
Section 376 IPC."
Similar observations were made by this Court
in Deepak Gulati v. State of Haryana (2013) 7 SCC
675 : (2013) 3 SCC (Cri) 660] (Deepak Gulati):
"21. ... 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;"
15. In Yedla Srinivasa Rao v. State of A.P. (2006) 11
SCC 615 : (2007) 1 SCC (Cri) 557] the accused forcibly
established sexual relations with the complainant. When
she asked the accused why he had spoiled her life, he
promised to marry her. On this premise, the accused
repeatedly had sexual intercourse with the complainant.
When the complainant became pregnant, the accused
refused to marry her. When the matter was brought to the
panchayat, the accused admitted to having had sexual
intercourse with the complainant but subsequently
absconded. Given this factual background, the Court
observed:
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"10. It appears that the intention of the
accused as per the testimony of PW 1 was, right from
the beginning, not honest and he kept on promising
that he will marry her, till she became pregnant. This
kind of consent obtained by the accused cannot be
said to be any consent because she was under a
misconception of fact that the accused intends to
marry her, therefore, she had submitted to sexual
intercourse with him. This fact is also admitted by
the accused that he had committed sexual
intercourse which is apparent from the testimony of
PWs 1, 2 and 3 and before the panchayat of elders of
the village. It is more than clear that the accused
made a false promise that he would marry her.
Therefore, the intention of the accused right from the
beginning was not bona fide and the poor girl
submitted to the lust of the accused, completely
being misled by the accused who held out the
promise for marriage. This kind of consent taken by
the accused with clear intention not to fulfill the
promise and persuading the girl to believe that he is
going to marry her and obtained her consent for the
sexual intercourse under total misconception, cannot
be treated to be a consent."
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 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. In Deepak Gulati [Deepak
Gulati v. State of Haryana, (2013) 7 SCC 675 : (2013) 3
SCC (Cri) 660] this Court observed : (SCC pp. 682-84,
paras 21 & 24)
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"21. ... 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 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.
***
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."
(emphasis supplied)
17. In Uday v. State of Karnataka, (2003) 4 SCC
46: 2003 SCC (Cri) 775] the complainant was a college-
going student when the accused promised to marry
her. In the complainant's statement, she admitted
that she was aware that there would be significant
opposition from both the complainant's and accused's
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families to the proposed marriage. She engaged in
sexual intercourse with the accused but nonetheless
kept the relationship secret from her family. The
Court observed that in these circumstances the
accused's promise to marry the complainant was not
of immediate relevance to the complainant's decision
to engage in sexual intercourse with the accused,
which was motivated by other factors : (SCC p.58,
para 25)
"25. There is yet another difficulty which
faces the prosecution in this case. In a case of
this nature two conditions must be fulfilled for
the application of Section 90 IPC. Firstly, it
must be shown that the consent was given
under a misconception of fact. Secondly, it must
be proved that the person who obtained the
consent knew, or had reason to believe that the
consent was given in consequence of such
misconception. We have serious doubts that the
promise to marry induced the prosecutrix to
consent to having sexual intercourse with the
appellant. She knew, as we have observed
earlier, that her marriage with the appellant
was difficult on account of caste considerations.
The proposal was bound to meet with stiff
opposition from members of both families.
There was therefore a distinct possibility, of
which she was clearly conscious, that the
marriage may not take place at all despite the
promise of the appellant. The question still
remains whether even if it were so, the
appellant knew, or had reason to believe, that
the prosecutrix had consented to having sexual
intercourse with him only as a consequence of
her belief, based on his promise, that they will
get married in due course. There is hardly any
evidence to prove this fact. On the contrary, the
circumstances of the case tend to support the
conclusion that the appellant had reason to
believe that the consent given by the
prosecutrix was the result of their deep love for
each other. It is not disputed that they were
deeply in love. They met often, and it does
appear that the prosecutrix permitted him
liberties which, if at all, are permitted only to a
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person with whom one is in deep love. It is also
not without significance that the prosecutrix
stealthily went out with the appellant to a
lonely place at 12 o'clock in the night. It usually
happens in such cases, when two young
persons are madly in love, that they promise to
each other several times that come what may,
they will get married."
(emphasis supplied)
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."
10. The Apex Court, a little later in the case
of DHRUVARAM MURLIDHAR SONAR (supra), while
following the earlier judgment of the Apex Court in the case
of UDAY v. STATE OF KARNATAKA reported in (2003) 4 SCC
46 and DEELIP SINGH v. STATE OF BIHAR reported
in (2005) 1 SCC 88, has held as follows:
"18. In Uday v. State of Karnataka (2003) 4
SCC 46 : 2003 SCC (Cri) 775, this Court was
considering a case where the prosecutrix, aged about
19 years, had given consent to sexual intercourse
with the accused with whom she was deeply in love,
on a promise that he would marry her on a later
date. The prosecutrix continued to meet the accused
and often had sexual intercourse and became
pregnant. A complaint was lodged on failure of the
accused to marry her. It was held that consent
cannot be said to be given under a misconception of
fact. It was held thus : (SCC pp. 56-57, paras 21 &
23)
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"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.
***
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 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
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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."
19. In Deelip Singh v. State of Bihar, (2005) 1 SCC
88 : 2005 SCC (Cri) 253], the Court framed the following
two questions relating to consent : (SCC p. 104, para 30)
(1) Is it a case of passive submission in the
face of psychological pressure exerted or allurements
made by the accused or was it a conscious decision
on the part of the prosecutrix knowing fully the
nature and consequences of the act she was asked to
indulge in?
(2) Whether the tacit consent given by the
prosecutrix was the result of a misconception created
in her mind as to the intention of the accused to
marry her?
In this case, the girl lodged a complaint with
the police stating that she and the accused were
neighbours and they fell in love with each other. One
day in February 1988, the accused forcibly raped her
and later consoled her by saying that he would marry
her. She succumbed to the entreaties of the accused
to have sexual relations with him, on account of the
promise made by him to marry her, and therefore
continued to have sex on several occasions. After she
became pregnant, she revealed the matter to her
parents. Even thereafter, the intimacy continued to
the knowledge of the parents and other relations who
were under the impression that the accused would
marry the girl, but the accused avoided marrying her
and his father took him out of the village to thwart
the bid to marry. The efforts made by the father of
the girl to establish the marital tie failed. Therefore,
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she was constrained to file the complaint after
waiting for some time.
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 v. State of
Bihar, (2005) 1 SCC 8 : 2005 SCC (Cri) 253], SCC p. 106,
para 35)
"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 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."
21. In Deepak Gulati v. State of
Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri)
660], the Court has drawn a distinction between rape
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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 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.
****
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
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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, 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.
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
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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 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."
(Emphasis supplied)
The Apex Court in the afore-quoted judgment has considered
the entire spectrum of law on the issue while following the
judgment in the case of DHRUVARAM MURALIDHAR SONAR
V. STATE OF MAHARASHTRA reported in (2019)18 SCC
191 and had obliterated the proceedings qua the accused.
12. Later to the judgment so rendered by the Apex Court
in the case of PRAMOD SURYABHAN PAWAR , the Apex Court
in the case of SHAMBHU KARWAR v. STATE OF UTTAR
PRADESH AND ANOTHER3 has held as follows:
"7. The parameters governing the exercise of the
jurisdiction of Section 482 of CrPC are well-settled and have
2022 SCC OnLine SC 1032
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been reiterated in a consistent line of decisions of this
Court. In Neeharika Infrastructure v. State of Maharashtra,
a three Judge Bench of this Court which one of us was a
part of (D.Y. Chandrachud J.), reiterated the parameters
laid down in R.P. Kapur v. State of Punjab and State of
Haryana v. Bhajan Lal and held that while the Courts ought
to be cautious in exercising powers under Section 482, they
do have the power to quash. The test is whether or not the
allegations in the FIR disclose the commission of a
cognizable offence. The Court does not enter into the
merits of the allegations or trench upon the power of the
investigating agency to investigate into allegations
involving the commission of a cognizable offence.
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:
"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).
[...]
(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."
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:
"13. It is clear that for quashing the
proceedings, meticulous analysis of factum of taking
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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."
(emphasis supplied)
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.
"375. Rape - A man is said to commit "rape" if he -
[...]
under the circumstances falling under any of the
following seven descriptions
Firstly ...
Secondly. - Without her consent.
[...]
Explanation 2. - Consent means an
unequivocal voluntary agreement when the woman
by words, gestures or any form of verbal or non-
verbal communication, communicates willingness to
participate in the specific sexual act:
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.
xxx
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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NC: 2025:KHC-D:4126
11. In Pramod Suryabhan Pawar v. State of
Maharashtra, 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:
"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...
[...]
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...
[...]
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
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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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.
(emphasis supplied)
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.
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
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
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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.
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.
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."
(Emphasis supplied)
In yet another judgment the Apex Court in the case of
MANDAR DEEPAK PAWAR V. STATE OF MAHARASHTRA
AND ANOTHER4 has held as follows:
"The appellant and respondent No.2 were
undisputedly in a consensual relationship from 2009 to
2011 (or 2013 as stated by the respondent No.2). It is the
say of the respondent No.2 that the consensual physical
relationship was on an assurance of marriage by the
Criminal Appeal No.442 of 2022 decided on 27th July 2022
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NC: 2025:KHC-D:4126
appellant. The complaint has been filed only in 2016 after
three years, pursuant whereto FIR dated 16-12-2016 was
registered.
On hearing learned counsel for parties, we find ex
facie the registration of FIR in the present case is abuse of
the criminal process.
The parties chose to have physical relationship
without marriage for a considerable period of time.
For some reason, the parties fell apart. It can happen
both before or after marriage. Thereafter also three
years passed when respondent No.2 decided to
register a FIR.
The facts are so glaring as set out aforesaid by us
that we have no hesitation in quashing the FIR darted
16.12.2016 and bringing the proceedings to a close.
Permitting further proceedings under the FIR would amount
to harassment to the appellant through the criminal process
itself.
We are fortified to adopt this course of action
by the judicial view in (2019) 9 SCC 608 titled
"Pramod Suryabhan Pawar v. State of Maharashtra &
another" where in the factual scenario where
complainant was aware that there existed obstacles
in marrying the accused and still continued to engage
in sexual relations, the Supreme Court quashed the
FIR. A distinction was made between a false promise
to marriage which is given on understanding by the
maker that it will be broken and a breach of promise
which is made in good faith but subsequently not
fulfilled. This was in the context of Section 375
Explanation 2 and Section 90 of the IPC, 1860.
The Criminal appeal is accordingly allowed.
Impugned judgment is set aside the proceedings in
pursuance to FIR dated 16-12-2016 stands quashed,
leaving parties to tear their own costs".
(Emphasis supplied)
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The afore-quoted were all cases where the relationship between
the accused and the prosecutrix was consensual and the
allegation was that of offence punishable under Section 376 of
the IPC for rape.
13. If the afore-narrated facts are considered on the
bedrock of elucidation by the Apex Court and the judgment of
the High Court of Kerala as afore-quoted, what would become
unmistakably clear that permitting further proceedings against
the petitioner would become an abuse of the process of law and
result in miscarriage of justice.
14. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) Proceedings in C.C.No.645 of 2023 pending
before the II JMFC, Belagavi stands quashed qua
the petitioner.
Sd/-
____________________
JUSTICE M.NAGAPRASANNA
BKP
