Xxx vs State Of Kerala
2025 Latest Caselaw 2223 Ker

Kerala High Court

Xxx vs State Of Kerala on 5 August, 2025

                                                               2025:KER:57816
Crl.R.P.No.709/2023
                                         -:1:-

                      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

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

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

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

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

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

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

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

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