[Cites 18, Cited by 0]
Punjab-Haryana High Court
Xxxxxxxxxxxx vs Xxxxxxxxxxxx on 9 April, 2026
CRM-M-37432-2019 -1
109
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-37432-2019
Date of Decision:09.04.2026
Karan Kumar Mutneja ...Petitioner
Vs.
Manjit Kaur ...Respondent
Coram : Hon'ble Mr. Justice N.S.Shekhawat
Present: Mr. Gourav Chopra, Sr. Advocate with
Ms. Seerat Saldi, Advocate
for the petitioner.
Mr. Krishan Kumar Thakur, Advocate
for the respondent.
***
N.S.Shekhawat J. (Oral)
1. The petitioner has filed the present petition under Section 482
Cr.P.C with a prayer to quash the impugned complaint titled as "Manjit Kaur
Vs. Karan Kumar Mutneja and Ors" instituted under Sections
376/313/323/452/504/506/217/218/148/149 of IPC (Annexure P-1) and the
summoning order dated 03.07.2019 (Annexure P-2) passed by the Court of Sub-
Divisional Judicial Magistrate, Guruharsahai and all consequential proceedings
arising therefrom.
2. Learned counsel for the petitioner vehemently argued that in the
present case, the impugned complaint (Annexure P-1) was filed by the
respondent against the petitioner and nine other persons by alleging that the
respondent/complainant was earlier married with Boor Singh in the year 2008,
however, she was beaten up by her husband and was turned out of her
matrimonial house in the year 2010. Since then, she was staying in her parental
house at Village Panje Ke Uttar. The petitioner and his father were on visiting
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terms with their family. The petitioner allegedly told the respondent that he
wanted to solemnize the marriage with her and on this pretext, the petitioner
and his family members started visiting their house. On one day, by taking
advantage of the above, the petitioner had sexual intercourse with the
respondent on the pretext of marriage and she even became pregnant.
Thereafter, the petitioner gave her some medicines and the pregnancy was
aborted, without her consent. Still further, the respondent informed the family
members of the petitioner regarding the above incident, but they also threatened
the respondent. It was further alleged that the petitioner had raped her on the
pretext of solemnizing the marriage with her between January, 2017 to March,
2017 and he was liable to be prosecuted for the same.
3. Learned counsel further submits that, during the course of
preliminary evidence, the respondent examined herself as CW-1 and also
examined five other witnesses in preliminary evidence. Ultimately, vide the
impugned summoning order dated 03.07.2019 (Annexure P-2), the petitioner
was summoned under Section 376 IPC to face trial in the present case.
4. Learned counsel for the petitioner further vehemently argued that
the date of birth of the petitioner is 11.07.1992 and at present, the petitioner is
aged about 34 years old. On the other hand, the respondent is also a married
lady and is also aged about 34 years. The brother of the respondent used to
work as a labourer with the father of the petitioner, who was running a
commission agent shop. Thus, the petitioner and respondent were known to
each other and were maintaining consensual relationship with each other. He
further contends that in fact, it has been falsely shown that the petitioner had
raped her on between January, 2017 to March, 2017, on the pretext of
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solemnization of marriage, however, the said allegation is wrong and palpably
false. In fact, the petitioner got engaged to Sonika on 15.01.2017 and their
marriage was solemnized on 29.03.2017 at Jalalabad and since then, the
petitioner and his wife have been cohabiting together as husband and wife and
are also blessed with a son on 30.01.2008. Learned counsel further contends
that even the allegations levelled by the respondent in the complaint (Annexure
P-1) were completely vague and unfounded. Even, the respondent had not
mentioned any date, time or place, when the promise of marriage had been
given by the petitioner or when the parties had sexual relations with each other.
Even, the respondent was herself a married lady admittedly and had not
obtained divorce till date. Consequently, there was no question of giving a false
representation of marriage to a married lady, by the present petitioner.
5. Learned counsel further submits that even if the allegations
levelled in the impugned complaint are taken at their face value, even though
not admitted to be correct, still it is discernible that the petitioner and the
respondent had sexual relations with each other, despite the fact that respondent
was a married lady and had not been divorced from her estranged husband. He
further submits that even from the allegations levelled in the impugned
complaint, the penal provisions of Section 375/376 IPC would not be attracted.
In fact, consent with respect of Section 375 IPC involves an active
understanding of circumstances, actions and consequences of the proposed act
and individual, who makes a reasoned choice to act after evaluating various
alternate actions (or inactions) as well as the various possible consequences
flowing from such action or inaction, consent to such an action.
6. Learned counsel for the petitioner also relies upon the law laid
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down by the Hon'ble Supreme Court in the matter of "Dhruvaram Murlidhar
Sonar Vs. State of Maharashtra, 2018 SCC Online SC 3100, which was a
case involving the invoking of the jurisdiction under Section 482 Cr.P.C. and
the Hon'ble Supreme Court observed as under:-
"15.... An inference as to consent can be drawn if only based on
evidence or probabilities of the case. "Consent" is also stated to be
an act of reason coupled with deliberation. It denotes an active will
in mind of a person to permit the doing of the act complained of."
This understanding was also emphasized in the decision of the Hon'ble Apex
Court in Kaini Rajan v. State of Kerala, (2013) 9 SCC 113:
"12... "Consent", for the purpose of Section 375, requires voluntary
participation not only after the exercise of intelligence based on
the knowledge of the significance of the moral quality of the act but
after having fully exercised the choice between resistance and
asset. Whether there was consent or not, is to be ascertained only
on a careful study of all relevant circumstances."
7. Still further, the Hon'ble Supreme Court in the matter "Anurag
Soni Vs. State of Chhattisgarh (20149) SCC Online SC 509, in the context of a
promise to marry, had observed that there was a distinction between false
promise given on the understanding by the maker and it will be broken and the
breach of a promise which is made in good faith but subsequently not fufilled
and held as under:-
"37. 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
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would marry her, such a consent can be said to be a consent
obtained on a misconception of fact as per Section 90 of the IPC
and, in such a case, such a consent would not excuse the offender
and such an order can be said to have committed the rape as
defined under Section 375 of the IPC and can be convicted for the
offence under Section 376 of the IPC."
8. The Hon'ble Supreme Court further held in the matter of "Pramod
Suryabhan Pawar Vs. The State of Maharashtra, Criminal Appeal No.1165-
2019, decided on 21.08.2019, held as under:-
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.
19. The allegations in the FIR indicate that in November 2009 the
complainant refused to engage in sexual relations with the
accused, but on the promise of marriage, he established sexual
relations. However, the FIR includes a reference to several other
allegations that are relevant for the present purpose. They are as
follows:-
i) The complainant and the appellant knew each other since 1998
and were intimate since 2004;
ii) The complainant and the appellant met regularly, traveled great
distances to meet each other, resided in each other's houses on
multiple occasions, engaged in sexual intercourse regularly over a
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course of five years and on multiple occasions visited the hospital
jointly to check whether the complainant was pregnant, and
iii) The appellant expressed his reservations about marrying the
complainant on 31 January 2014. This led to arguments between
them. Despite this, the appellant and the complainant continued to
engage in sexual intercourse until March 2015.
9. On the other hand, learned counsel appearing on behalf of the
respondent has vehemently argued that there are specific allegations against the
present petitioner and he has raised several disputed questions of fact, which
cannot be adjudicated by this Court while exercising the jurisdiction under
Section 482 Cr.P.C.. Moreover, the petitioner is the principal accused and had
committed rape with the respondent, on the false pretext of marrying her. Thus,
the present petition deserves to be dismissed by this Court.
10. I have heard the learned counsel for the parties and with their able
assistance; I have gone through the record carefully.
11. In the present case, the prosecutrix herself is a married lady, who
had married with Boor Singh in the year 2008. However, in the year 2010, she
started living separately from her husband and was residing at her parental
house in Village Panje Ke Uttar till the date of institution of complaint. Still
further, it is also apparent from the record that the respondent herself had not
obtained divorce from her estranged husband and thus, it cannot be believed
that the petitioner had promised to marry her. Still further, from the facts of the
case, it is further established that a married woman could not be said to have
acted under the alleged false promise given by the petitioner or under
misconception of fact while giving consent to have sexual relationship with the
present petitioner. Even, undisputedly, she continued to have sexual relations
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with the petitioner for several months and even if the allegations made by her
are taken on their face value, then also to construe such allegation as "rape" by
the petitioner would be stretching the case to far. The prosecutrix/respondent
being a married woman was a mature lady and was intelligent enough to
understand the significance and consequences of the moral or immoral quality
of act, she was consenting to. Apart from that, even if her conduct is viewed in
entirety, it is apparent that she had betrayed her estranged husband and had
developed a liking for the petitioner, without obtaining divorce from her
husband. Thus, it is well proved from the facts and circumstances of the case
that the prosecutrix had not given her consent for the sexual relationship with
the petitioner under the misconception of fact, so as to prosecute the petitioner
for having committed rape within the meaning of Section 375 IPC.
12. Still further, the Hon'ble Supreme Court has held in the matter of
"Naim Ahamed Vs. State (NCT of Delhi),2025(2),SCC (Cri)640, held as
follows:-
"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
judgements 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.
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 Karnataka (2003) 4 SCC 46, 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:-
"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.
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
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".
15.In Deelip Singh alias Dilip Kumar 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-
"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
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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 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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13. Thus, in view of the above discussion, the present petition is
allowed by this Court and the impugned complaint titled as "Manjit Kaur Vs.
Karan Kumar Mutneja and Ors" instituted under Sections
376/313/323/452/504/506/217/218/148/149 of IPC (Annexure P-1) and the
summoning order dated 03.07.2019 (Annexure P-2) passed by the Court of Sub-
Divisional Judicial Magistrate, Guruharsahai and all consequential proceedings
arising therefrom are quashed by this Court qua the petitioner only.
(N.S.SHEKHAWAT)
09.04.2026 JUDGE
hitesh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
