VERDICTUM.

IN

Reserved on : 30.05.2024
Pronounced on : 07.06.2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 07TH DAY OF JUNE, 2024

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

CRIMINAL PETITION No.13912 OF 2023

BETWEEN:

1 . MR. SANTHOSH SHETTY,

S/O ANAND SHETTY
AGED ABOUT 35 YEARS.

2 . ANAND SHETTY
S/O VENKAPPA SHETTY
AGED ABOUT 63 YEARS.

3 . SMT. GULABI SHETTY

W/O ANAND SHETTY
AGED ABOUT 61 YEARS.

4 . SRI JAYAPRAKASH SHETTY

S/O ANAND SHETTY
AGED ABOUT 38 YEARS.

5 . JYOTHI D. SHETTY
D/O DINAKAR SHETTY
AGED ABOUT 34 YEARS.

6 . DINAKAR SHETTY
S/O RAMANNA SHETTY
 VERDICTUM.IN

AGED ABOUT 41 YEARS.

ALL ARE RESIDING AT

NO.2-4A, ULLURU HOUSE
HAKLADI VILLAGE
KUNDAPURA TALUK
UDUPI DISTRICT – 576 201.
... PETITIONERS
(BY SRI MAHESH KIRAN SHETTY S., ADVOCATE)

AND:

1 . STATE OF KARNATAKA
BY SUB INSPECTOR OF POLICE
KUNDAPURA POLICE STATION
BENGALURU
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
HIGH COURT BUILDING
BENGALURU – 560 001.

2.

... RESPONDENTS

(BY SRI THEJESH P., HCGP FOR R-1;

SRI P.B.UMESH, ADVOCATE FOR R-2)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF

CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO.1926/2023 PENDING ON THE FILE OF THE ADDL.CIVIL
 VERDICTUM.IN

JUDGE AND J.M.F.C. KUNDAPURA FOR THE OFFENCE P/U/S 417,

420, 109, 504, 376 R/W 34 OF IPC.

THIS CRIMINAL PETITION HAVING BEEN HEARD AND

RESERVED FOR ORDERS ON 30.05.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

ORDER

The petitioners are before this Court calling in question

proceedings in C.C.No.1926 of 2023 pending before the Additional

Civil Judge & JMFC, Kundapura registered for offences punishable

under Sections 376, 471, 420, 109, 504 r/w 34 of the IPC.

2. Heard Sri S. Mahesh Kiran Shetty, learned counsel

appearing for the petitioners, Sri P. Thejesh, learned High Court

Government Pleader appearing respondent No.1 and

Sri P.B. Umesh, learned counsel appearing for respondent No.2.

3. Sans details, facts germane are as follows:-

The 2nd respondent is the complainant. The 1st petitioner, in

terms of the averments in the petition, is said to be working as a

Supervisor in Royal Kerabiam Group International Shipping

 VERDICTUM.IN

Company at New Jersey, United States of America, and was looking

for a girl to get married. Owing to the said desire, he posted his

profile, on matrimonial website called ‘Shetty Matrimonial’. After

posting his profile, the 1st petitioner comes in contact with the 2nd

respondent. Both began talks. This happens up to 07-01-2023. The

1st petitioner was in India at that point in time. On 08-01-2023, the

1st petitioner and the complainant met at a temple in Haklady and

are said to have exchanged their opinions, which led to negotiations

between the members of the families of both the 1st petitioner and

the complainant. The proposal for marriage is said to have been

accepted by the family members of both the families. Engagement

of the 1st petitioner and the complainant is held on 11-01-2023.

4. On 11-01-2023, it is the averment that the complainant

asked the petitioner to transfer `4/- lakhs to invest in some money

earning fund. It is immediately done. On the morning of

12-01-2023 the 1st petitioner flies back to New Jersey.

Communications between the two, including the families, galore.

About seven months later emerges a complaint. Narration in the

complaint is that on 11-01-2023 the 1st petitioner at about 6.00

 VERDICTUM.IN

p.m. noticing the fact that no one was in the house, forced the

complainant to indulge in sexual intercourse, on the ground that the

marriage of the 1st petitioner with the complainant had been agreed

to be held on 08-09-2023. It is the further averment that believing

the words of the family members of the 1st petitioner, invitations

were also printed about the marriage. For manifold reasons which

are narrated in the complaint, the engagement breaks and the

marriage fails. It is then the aforesaid complaint emerges. All the

family members including accused No.1, would be husband of the

complainant are arrayed as accused in the complaint. The Police

conduct investigation upon the complaint and file a charge sheet

against all the petitioners. Filing of charge sheet is what has driven

the petitioners to this Court in the subject petition.

5. The learned counsel appearing for the petitioners would

vehemently contend that the incident narrated in the entire

complaint is highly improbable. After the engagement, it is the case

of the petitioners that all the family members never went away and

there was no occasion at 6.00 p.m. on that day for the 1st petitioner

to take the complainant to a room and indulge in sexual

 VERDICTUM.IN

intercourse. It is the case of the 1st petitioner that throughout 7

months, the complainant goes on demanding money and, therefore,

the family members doubting bona fides of the complainant decided

to call off the marriage. The decision to call off the marriage cannot

amount to cheating. Spending time with the complainant along with

members of the family of the complainant cannot amount to rape

under Section 376 of the IPC. It is his submission that there can be

no better illustration of abuse of the process of law.

6. Per contra, the learned High Court Government Pleader

appearing for the 1st respondent/State and the learned counsel

appearing for the 2nd respondent/complainant would in unison

submit that the Police after investigation have filed a charge sheet.

Since the charge sheet is filed, it is for the petitioners to come out

clean in a full blown trial. The complainant’s counsel would contend

that all the members of the families sitting together have decided

upon marriage. Date of marriage was fixed. Invitation cards were

also printed. After seven months, the family members of the 1st

petitioner call off the marriage. The impact upon the complainant,

and the family, is so huge that it would amount to cheating.

 VERDICTUM.IN

Therefore, it is a clear case where the petitioners have lured the

family of the complainant and the complainant into marriage and

have cheated, breaking the engagement.

7. Insofar as the allegation under Section 376 of the IPC is

concerned, it is the submission of the learned counsel for the 2nd

respondent that on the day of engagement, noticing that no one

was in the house of the complainant, the 1st petitioner has indulged

in the act of sexual assault upon the complainant, that too on the

promise of marriage. Therefore, he would submit that it is a clear

case where all the offences are met and the petition should be

dismissed.

8. I have given my anxious consideration to the submissions

made by the respective learned counsel and have perused the

material on record.

9. The afore-narrated facts are not in dispute. The jugglery

of dates would require reiteration. The 1st petitioner uploading his

profile on a matrimonial website is a matter of record. After such

 VERDICTUM.IN

uploading, the complainant coming in contact with the 1st petitioner

is also a matter of record. On 10-01-2023 the families of both the

1st petitioner and the complainant met and the proposal of marriage

is accepted. On 11-01-2023, betrothal ceremony takes place. It is

the averment in the petition on the strength of the Bank statement

that, `4/- lakhs was transferred to the account of the complainant.

It is an admitted fact that the complainant did receive the said

amount. On the next day morning i.e., on 12-01-2023, the 1st

petitioner takes a bus from Kundapur to Mumbai and travels from

Mumbai to Miami, USA. The flight details and the bus details are

also appended to the petition.

10. It is an admitted fact that the 1st petitioner travels from

Kundapur to Mumbai and Mumbai to Miami on 12-01-2023. Seven

months passed by. Communications galore between the two,

including whatsapp chats. Nowhere in any whatsapp chat even a

line of narration is made by the complainant about the 1st petitioner

or the complainant indulging in sexual intercourse on 11-01-2023,

on the day of betrothal ceremony at 6.00 p.m. Several differences

crop up between the 1st petitioner and the complainant or their

 VERDICTUM.IN

families. Engagement breaks. Breaking of engagement results in

the subject complaint. Since the complaint is the genesis of the

problem, I deem it appropriate to notice the foundation in the

complaint to lay down the offences. The primary offence alleged is

the offence punishable under Section 376 of the IPC. The

foundation is found at paragraphs 1 and 2 of the complaint which

read as follows:

“1. £Á£ÀÄ ªÉÄïÁÌt¹zÀ «¼Á¸ÀzÀ°è £À£Àß vÀAzÉ CAvÉÆä r’PÉÆøÀÖ, vÁ¬Ä

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PÉgÉ©AiÀÄ£ï UÀÆæ¥ï£À EAlgï£Áå±À£À¯ï PÀA¥É¤AiÀÄ°è ¸ÀÆ¥gïªÉʸÀgï JAzÀÄ ºÉý ¥ÉÆÃmÉÆÃ
UÀ¼À£ÀÄß ºÁQ ¥ÀjZÀ¬Ä¹ PÉÆArzÀÝ£ÀÄ. £Á£ÀÄ vÁjÃPÀÄ:07-01-2023 gÀAzÀÄ DvÀ¤UÉ UɼÉvÀ£ÀPÉÌ
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D£ÉUÀÄqÉØAiÀÄ zÉêÀ¸ÁÜ£ÀzÀ°è ¥ÀgÀ¸ÀàgÀ ¨sÉÃn DzɪÀÅ. MAzÀ£Éà DgÉÆæAiÀÄÄ £À£ßÀ £ÀÄß
ªÀÄzÀĪÉAiÀiÁUÀĪÀ «ZÁgÀ ªÀiÁvÀ£ÁrzÀ£ÀÄ. £ÀªÀÄä eÁvÀPÀªÀÅ vÁ¼É DVzÀÝjAzÀ MAzÀ£ÉÃ
DgÉÆæAiÀÄÄ £À£ÀߣÀÄß vÀÄA¨Á EµÀÖ¥ÀqÀĪÀÅzÁV w½¹ ªÀÄzÀĪÉAiÀiÁUÀĪÀÅzÁV MvÁ۬ĹzÀ£ÄÀ .
£Á£ÀÄ ºÁUÀÆ £À£ßÀ vÁ¬Ä VÃvÁ M¦àPÆ É AqɪÅÀ . MAzÀ£Éà DgÉÆæAiÀÄÄ £ÀªÀÄä vÀAzÉ-vÁ¬ÄAiÀÄÄ
PÀÄAzÁ¥ÀÄgÀ vÁ®ÆQ£ ºÀPÁèr UÁæªÀÄzÀ ªÀÄ£ÉUÉ ªÀÄzÀĪÉAiÀÄ §UÉÎ ªÀiÁvÀ£ÁqÀ®Ä §gÀ¨ÉÃPÉAzÀÄ
w½¹zÀ£ÀÄ. DvÀ£À DºÁé£ÀzÀAvÉ £À£Àß vÁ¬Ä VÃvÁ ºÁUÀÆ vÀAzÉ CAvÉÆä r’PÉÆøïÖ ¢£ÁAPÀ:
10-01-2023 gÀAzÀÄ ¨É½UÉÎ 10.30 UÀAmÉAiÀÄ ¸ÀĪÀiÁjUÉ 1£Éà DgÉÆævÀ£À ªÀÄ£ÉUÉ ºÉÆÃzɪÀÅ.
DUÀ C°è 1£Éà DgÉÆæAiÀÄ vÀAzÉ D£ÀAzÀ ±ÉnÖ, vÁ¬Ä UÀįÁ© ±ÉrÛ, 1£Éà DgÉÆæ ¸ÀAvÉÆõÀ
±ÉnÖ EªÀgÀÄUÀ¼ÀÄ EzÀÝgÀÄ. CªÀgÀÄUÀ¼É®ègÀÆ PÀĽvÀÄ, ªÀÄzÀĪÉAiÀÄ §UÉÎ CªÀgÀ §®ªÁzÀ D±ÀAiÀĪÀ£ÀÄß
ªÀåPÀÛ¥Àr¹zÀgÀÄ. CªÀgÀÄUÀ¼É®ègÀÆ ªÀÄzÀÄªÉ §UÉÎ £ÀªÀÄä£ÀÄß MvÁ۬ĹzÀgÀÄ. vÁjÃPÀÄ:11-01-2023
gÀAzÀÄ ¨É½UÉÎ 12 UÀAmÉUÉ ¤²ÑvÁxÀðzÀ PÁAiÀÄðPÀæªÀÄ ªÀiÁqÀ¯Á¬ÄvÀÄ. DUÀ 1 ºÁUÀÆ 3£ÉÃ
DgÉÆævÀgÀÄ £ÀªÀÄä ªÀÄ£ÉUÉ §AzÀÄ, ¤²ÑvÁxÀðªÁ¬ÄvÀÄ. GAUÀÄgÀUÀ¼À «¤ªÀÄAiÀÄ DV
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¸ÀAzÀ¨sÀðzÀ ¨sÁªÀavÀæUÀ¼À£ÀÄß vÉUÉAiÀįÁ¬ÄvÀÄ.
 VERDICTUM.IN

10

2. MAzÀ£ÉÃAiÀÄ DgÉÆæAiÀÄÄ ¢£ÁAPÀ: 11-01-2023 gÀAzÀÄ ¸ÀAeÉ 6 UÀAmÉAiÀÄ ¸ÀªÀÄAiÀÄ

MAzÀ£Éà DgÉÆæAiÀÄÄ £ÀªÀÄä ªÀÄ£ÉUÉ §A¢zÀÝ£ÀÄ. DUÀ £À£Àß vÀAzÉ – vÁ¬Ä ¢£À¹ ªÀ¸ÀÄÛUÀ¼À£ÀÄß vÀgÀ®Ä
CAUÀrUÉ ºÉÆÃVzÀÝ£ÀÄ. DUÀ DgÉÆæAiÀÄÄ §¯ÁvÁÌgÀ¢AzÀ, £À£Àß EZÉÒUÉ «gÉÆÃzsÀªÁV £ÀªÀÄä ªÀÄ£ÉAiÀÄ
ªÀiÁ½UÉ ªÉÄðgÀĪÀ PÉÆoÀrAiÀÄ°è £À£Àß eÉÆvÉ §®vÁÌgÀªÁV JgÀqÀÄ ¨Áj ºÀoÀ ¸ÀA¨sÉÆÃUÀªÀ£ÀÄß
ªÀiÁrgÀÄvÁÛ£É. MAzÀ£Éà DgÉÆæAiÀÄÄ §® ¥ÀæAiÉÆÃUÀ ªÀiÁr, £À£Àß ²Ã® ºÀgÀt ªÀiÁrzÀ £ÀAvÀgÀ
£Á£ÀÄ wêÀæ CªÀªÀiÁ£À¢AzÀ C¼ÀÄvÁÛ PÀĽvÉ£ÀÄ. DUÀ MAzÀ£Éà DgÉÆæAiÀÄÄ vÁ£ÀÄ ºÉÃUÉÆà ¤£ÀߣÀÄß
ªÀÄzÀĪÉAiÀiÁUÀĪÀ ºÀÄqÀÄUÀ, DvÀ£ÀÄ ²Ã®ºÀgÀt ªÀiÁrzÀ «ZÁgÀªÀ£ÀÄß AiÀiÁjUÀÆ ºÉüÀ¨ÉÃqÁ JAzÀÄ
ºÉýzÀÝjAzÀ £Á£ÀÄ ¸ÀĪÀÄä¤zÉÝ£ÀÄ. MAzÀ£Éà DgÉƦAiÀÄÄ PÁªÀÄÄPÀ£ÁVzÀÄÝ, PÁªÀiÁvÀÄgÀ¢AzÀ £À£Àß
‘gÉÃ¥ï’ ªÀiÁrgÀÄvÁÛ£É. DvÀ¤AzÀ £À£Àß ªÀiÁ£ÀºÁ¤, CªÀªÀiÁ£À DVgÀÄvÀÛzÉ.”

(Emphasis added)

To drag all other members of the family as accused for the offences

under Sections 417, 420, 109 and 504 of the IPC, the foundation is

laid in paragraphs 3 to 8 of the complaint, which read as follows:

“3. ನನ ತಂೆ ೋಮ ಾೋ ಯ ಾೆ ೇದವಾಾೆ. ನನ ಾ! ೕ ಾ

"ಂದೂ ಾೆ ೇದವಾಾೆ. ನನ ಾ!ಯ ತಂೆ #ೆ$% ಾೆ ೇದವಾದು, ನನ
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(ಾನು ೇವಾ.ನೆ/ 0ೋಗುವವ,ಾೆೕ(ೆ. ಈ ಎ4ಾ5 67ಾರ ಗಳನು 1(ೇ ಆೋ;ೆ ಪಚಯ=ಾದ
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@Aರು ಾBೆ.

4.-(ಾಂಕ: 10-02-2023 ರಂದು +ೆ@ೆG 11.20ೆ/ 1(ೇ ಆೋ;ಯ ತಂೆ (1) ಆನಂದ #ೆ$%, (2) ಆತನ
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ಮ(ೆೆ ಬಂದು 0ೋಗುBದರು. (ಾವ> ಅವರುಗಳ ಬ@ ಎ4ಾ5 67ಾರಗಳನು @Aದರೂ, ಆ -ನ ನನ
0ಾಗೂ ಒಂದ(ೇ ಆೋ;ಯ ನಡು=ೆ ಮದು=ೆಯು -(ಾಂಕ: 08-09-2023 ರಂದು ಎಂದು ೕ]ಾJನ
 VERDICTUM.IN

11

=ಾರುವ>ದನು ದೃeೕಕAದರು. ಮದು=ೆಾ 'ಸಹ(ಾ ಕ(ೆfಷ 0ಾh' "ನ5 ಉಭಯುತರ

ಒ;kೆ!ಂದ lಗ-ಪXಸ4ಾತುB.

4. (ಾವ> ಮದು=ೆಯ ಆಮಂತಣ ಾಗದವನು ಮು-A, ಸಂಬಂ-ಕೆ,

ಸಂಬಂ-ಕೆ, ಬಂಧುಗ@ೆ 0ಾಗೂ
ೆೕ"ತೆ ಹಂ\ರು ೆBೕ=ೆ. ಆೋ;ತರ ಕoೆ!ಂದಲೂ ಮದು=ೆಯ ಆಮಂತಣ ಾಗದವನು ಎಲ5ಗೂ
ಹಂಚ4ಾೆ. ಎರಡು ಕoೆ!ಂದ ಹಂಚ4ಾದ ಮದು=ೆಯ ಆಮಂತಣ ಪತವನು ಲBೕಕಸ4ಾೆ.

5. 1(ೇ ಆೋ;ಯು ಾೕಕು: 22-08-2023 ರಂದು ಅpೕಾ-ಂದ Yಾರತೆ/ ನನನು

ಮದು=ೆQಾಗುವ ಬೆG ಬರುವ>ಾ @Aದನು. ಆತನನು ಾfಗಸಲು
ಾfಗಸಲು (ಾವ> Aದq=ಾೆವ>. (ಾವ>ಗಳ?
ಬಹಳ ಸಂ ೋಷ=ಾೆವ>.

6. ಾೕಕು: 07-09-2023 ರಂದು pಹಂ- 0ಾಗೂ ಾೕಕು: 08-09-2023ೆ/ ಮದು=ೆ ಎಂದು ಮತುB
ಅೇ -ನ ಾ ಮೂ ೆJಾರರ ಸYಾಭವನ ತಲೂ5ನ5 ೆಪk ಎಂದು (ಾನು ಸಂ ೋಷದ5ೆನು.
5(ೇ ಆೋ; ೆಯು ಮೂ ೆJಾರರ ಸYಾಭವನ, ತಲೂ5ನ
ನ ಸYಾಭವನವನು (ೋX, ಒ;k ಆೆrೕ
ಅದರ A/sೕ
A/sೕ#ಾt ಕಳ?"Aರು ಾB, ೆ. ಒಂದ£Éà ಆೋ;ಯು ಕಳ?"Aದ 6]ಾನದ $ೇtನ
$ೇtನ
ಪಯನು ಲBೕಕAೆೕ(ೆ.

7. ಒಂದ(ೇ ಆೋ;ಯು ಾೕಕು:

ಾೕಕು: 19-
19-08-
08-2023 ರಂದು ನನೆ =ಾ~ಾÄ ಕೆಯನು ]ಾX ಆತನು
ಮದು=ೆೆ ಬರುವ>-4ಾ5 ಎಂಬ ಆÅತಾ 67ಾರವನು @Aದನು.
@Aದನು. (ಾನು ಆತlೆ Yಾರತೆ/ ಬl.
ಬl.
ನನನು ಮದು=ೆQಾ ಎಂದು 6ಧ6ಧ=ಾ 6ನಂAದರೂ,
6ನಂAದರೂ, ಒಂದ(ೇ ಆೋ;!ಂದ ಪr
ಬಂ-4ಾ5. ಒಂದ(ೇ ಆೋ;ಯು ನನೆ Çೕಸ ]ಾಡಲು 0ೊರ$ರು ಾB(ೆ ಎಂದು ನನೆ
ಖ\ತ=ಾ!ತು.
ಖ\ತ=ಾ!ತು. (ಾನು ಊರ ತುಂ+ಾ ಎ4ಾ5 ಮದು=ೆಯ ಆಮಂತಣ ಪತವನು ಹಂ\ರು ೆBೕ(ೆ
(ೆ.. ಈಗ
ಊನ5 ಮುಖ ಎB ರುಾಡದ ಪA.ಯು ನನೆ ಉಂ~ಾರುತBೆ.ೆ.

8. (ಾನು,
(ಾನು, ನನ ತಂೆ 0ಾಗೂ ಾ! ಾೕಕು:
ಾೕಕು: 22-
22-08-
08-2023 ರಂದು ಮಂಗಳ=ಾರ ಮÑಾಹ 3.30
0ೋೆವ>.. ಆಗ 2 0ಾಗೂ 3(ೇ
ಗಂ~ೆೆ ಒಂದ(ೇ ಆೋ;ಯ ಹಾ5X ಮ(ೆೆ ಈ ಬೆG ]ಾತ(ಾಡಲು 0ೋೆವ>
ಆೋ;ತರು ನಮೆ ಅವ0ೇಳನ ]ಾX,
]ಾX, ಮೂದA ಈ ಮದು=ೆ.
ಮದು=ೆ. ನoೆಯುವ>-4ಾ5
ನoೆಯುವ>-4ಾ5. ಒಂದ(ೇ
ಆೋ;ಯು ನನನು ಮದು=ೆQಾಗುವ>-4ಾ5 ಎಂದು 0ೇ@ ನಮC ಮನAೆ (ೋವ>ಂಟು ]ಾXದರು.
]ಾXದರು.
lಾಂಶ=ೇ(ೆಂದೆ 2 ಂದ 6(ೇ ನೂ ಆೋ;ಗ@ೆ ಈ ಮದು=ೆ ನoೆಯುವ>ದು ಇಷ%6ರ4ಾ5.
ಅವರುಗ@ೆ ಒಂದ(ೇ ಆೋ;ಯನು ತುಂ+ಾ ವರದÜáೆ ತರುವ ಹುಡುಯೊಂ-ೆ ಮದು=ೆ
]ಾಡ+ೇೆಂಬ ದುಾೆ ಇತುB. ಒಂದ(ೇ ಆೋ;ಯು ನನ ಹBರೆ/ ಬಂದು ನನ ಅಂಗಸುಖ ಪoೆಯುವ
ದುಾೆ!ಂದ ಮದು=ೆಯ (ಾಟಕ=ಾXರು ಾB(ೆ.ೆ. ಆತನು ಸfಂತ ಬು-q!ಂದ 0ಾಗೂ 2 ಂದ 6(ೇ
ಆೋ;ತರು lೕXದ ದು+ೋJದ(ೆ !ಂದ ನ(ೊಂ-ೆ ಮದು=ೆಯನು ಆಗೇ ವಂ\Aರು ಾB(ೆ.”
ೆ.”
(Emphasis added)
 VERDICTUM.IN

12

The narration in the complaint is that on the evening of 11-01-2023

at about 6.00 p.m. the 1st petitioner comes to the house of the

complainant. The parents of the complainant, on the date of

engagement, are said to have gone to get groceries to the house.

At that time, the 1st petitioner is said to have indulged in sexual

intercourse with the complainant on the promise of marriage

against the consent of the complainant. For the other offences

against other members of the family the averment is that, invitation

cards had been printed and any amount of request made by the

complainant and her family to the members of the family of the 1st

petitioner, none came forward and therefore the complaint against

them also. The Police conduct investigation and file a charge sheet.

The summary of the charge sheet reads as follows:

“ೇAನ ಸಂÜಪB ಾಾಂಶ

ಈ ೋâಾೋಪಣ ಪತದ ಅಂಕಣ ನಂಬ 12 ರ5 ನಮೂ-Aದ ಆDಾ-ತರ pೕ4ೆ 0ೊಸ4ಾದ

ಆ=ಾದನ ಏ(ೆಂದೆ 1(ೇ ಆDಾ-ತನು ಾÜ 1 (ೇಯವರನು ;ೕA ಮದು=ೆಯಗುವ>ಾ ನಂPA
-(ಾಂಕ:: 11/01/2023 ಮÑಾಹ 12.00 ಗಂ~ೆೆ ೌರ=ಾlfತ (ಾQಾಲಯದ =ಾ;Bೆ ಒಳಪಡುವ
ಕುಂಾಪ>ರ ಾಲೂಕು ಮಂಗಳaರು ಾಮದ ಬಹCನಗುX ರೆBಯ5ರುವ 'ಾÜ' ಎಂಬ 0ೆಸನ ಾÜ
1 ಂದ 3 (ೇಯವರ =ಾಸದ ಮ(ೆಯ5 ಾÜ 2,3 ಮತುB 3 (ೇ ಆೋ;ತಳ ಸಮLಮದ5 ಾÜ 1
ಮತುB 1 (ೇ ಆೋ;ತನ ಮದು=ೆ lC ಾಥJ ]ಾXೊಂಡು -(ಾಂಕ: 08/09/2023 ರಂದು
ೋ~ೇಶfರದ ಸಹನ ಕ(ೆfನ 0ಾಲ5
0ಾಲ5, ಮದು=ೆ ]ಾಡುವ>ಾ ೕ]ಾJlAದು, ಬ@ಕ ಅೇ -ನ
ಮ(ೆಯ5 Qಾರೂ ಇಲ5ದ ಸಮಯ ಸಂೆ 6.00 ಗಂ~ೆೆ ಅೇ ಮ(ೆಯ pೕಲಂತABನ +ೆç ರೂéನ5 1
(ೇ ಆೋ;ತನು ಾÜ 1 (ೇಯವರ ಇ7ೆèೆ 6ರುದq=ಾ ಆೆêA-ೆ
ಆೆê -ೆ ಬಲ ಾ/ರ=ಾ ಸಂYೋಗ
 VERDICTUM.IN

13

]ಾX ಆೆಯ ೕಲ ಹರಣ ]ಾXದ®èzÉ, ಈ 67ಾರವನು Qಾಗೂ

Qಾಗೂ 0ೇಳ+ೇಡ ಮದು=ೆQಾಗು ೆBೕ(ೆ
ಎಂದು ನಂPAರು ಾB(ೆ
(ೆ, ಬ@ಕ -(ಾಂಕ: 10/02/2023 ರಂದು 2,4,5,6 (ೇ ಆೋ;ತರು ಾÜ 1
(ೇಯವರ ಮ(ೆೆ ಬಂದು ಾÜ 1, 2, 3 (ೇಯವೊಂ-ೆ ಮದು=ೆಯ §UÉÎ ªÀiÁvÀÄPÀvÉ £Àqɹ M¦àUÉ
¸ÀÆa¹ ºÉÆÃVzÀÄÝ, §½PÀ ¸ÁQë 1 jAzÀ 3 £ÉÃAiÀĪÀgÀÄ ¸ÁQë 1, £ÉÃAiÀĪÀgÀ ªÀÄzÀÄªÉ §UÉÎ vÀAiÀiÁj
ªÀiÁr ಮದು=ೆ ಆಮಂತಣ ಪೆಯನು ಸಂಬಂëಕೆ, " ೈಗ@ೆ ಹಂ\ದು, ಮದು=ೆ ಬ~ೆ%, \(ಾ
Yಾರಣಗಳನು
Yಾರಣಗಳನು ಖೕ-A ಮದು=ೆ 0ಾh ೊತುBಪXAದು, ಬ@ಕ -(ಾಂಕ: 19/08/2023 ರಂದು 1 (ೇ
ಆೋ;ತನು ಾÜ 1 (ೇಯವೆ ದೂರ=ಾí ಕೆ. ]ಾX ಮದು=ೆ ಆಗುವ>-ಲ5=ಾ
ಾ @Aದು,
ಆತನನು ಮನìAದರೂ ಆತನು ಮದು=ೆ ಆಗಲು ಒಪkೇ ಇದು, ನಂತರ -(ಾಂಕ: 22/08/2023
ರಂದು 3.30 UÀAmÉUÉ ¸ÁQë 1 jAzÀ 3£ÉÃAiÀĪÀgÀÄ PÀÄAzÁ¥ÀÄgÀ vÁ®ÆPÀÄ ºÀPÁèr UÁæªÀÄzÀ G¼ÀÆîgÀÄ ªÀÄ£É
JA§°è£À ಆೋ;ತರ =ಾಸದ ಮ(ೆೆ 0ೋ ಮದು=ೆಯ ಬೆG, 67ಾAಾಗ 2 ಮತುB 3 (ೇ
ಆೋ;ತರು ಈ ಮದು=ೆ ನoೆಯುವ>-ಲ5 ಸಂ ೋಷ #ೆ$%ೆ ಮದು=ೆQಾಗಲು ಇಷ% ಇಲ5 ಎಂದು
ಅವ0ೇಳನ=ಾಗುವಂ ೆ 0ೇ@ ರಂoೆ, ಮುಂoೆ
ಮುಂoೆ ಇ ಾ-Qಾ ಆ=ಾಚ ಶಬಗ@ಂದ lಂ-A
ಕಳ?"Aರು ಾBೆ. 1 (ೇ ಆೋ;ತರು ಾÜ 1 (ೇಯವೊಂ-ೆ ಅಕಮ=ಾ 4ೈಂಕ ಸಂYೋಗ
ನoೆA, ಮುದು=ೆ l ಾಥJ ]ಾXೊಂಡು ಮದು=ೆQಾಗುವ>ಾ
ಮದು=ೆQಾಗುವ>ಾ ನಂPA, ಅಲ5ೆ 1 (ೇ ಆೋ;ತನು
ಅpೕಾದ ೋಯh ಕೇPಯ ಇಂಟî (ಾಷನh 0ೋ~ೇನ5 =ೈಟî ೆಲಸ ]ಾಡುBದು,
ಆದೆ ಆತನು ಾÜ 1(ೇಯವೆ ಾನು ಅpೕಾದ 0ೋ~ೇhನ
0ೋ~ೇhನ5 ಸುಪî =ೈಸî ಆ ೆಲಸ
]ಾಡುವ>ಾ ಸುಳ?ï ಾಖ4ೆಯನು
ಾಖ4ೆಯನು lೕX Çೕಸ ]ಾXದಲೆ, ಬ@ಕ ಆೋ; 2 ಂದ
ಂದ 6 (ೇಯವರು
ಸ]ಾನ ಉೆೕಶ-ಂದ ]ಾXದ ದುâೆñೕರáೆ!ಂದ
ದುâೆñೕರáೆ!ಂದ ಾÜ 1 (ೇಯವರನು ಮದು=ೆQಾಗೇ Çೕಸ
ವಂಚ(ೆ ]ಾXರುವ>ದು ತlóೆ!ಂದ @ದುಬಂ-ರುತBೆ.

ಆದುದಂದ 1 (ೇ ಆೋ;ತನು ಕಲಂ 376, 417, 420 ಐ.;.A ಮತುB 2 ಂದ 6 (ೇ
ಆೋ;ತರು ಕಲಂ : 417, 420, 109, 504 eÉÆvÉUÉ 34 ಐ.;.A AiÀÄAvÉ ²PÁëºÀð C¥ÀgÁzsÀ
J¸ÀVgÀĪÀÅzÁV ¸À°è¹zÀ F zÉÆõÁgÉÆÃ¥Àt ¥ÀvÀæ.”
(Emphasis added)

The summary is in complete reiteration of what is found in the

complaint.

11. The issue now would be whether, trial should be

permitted to be continued against the petitioners; 1st petitioner in

 VERDICTUM.IN

14

particular, for offences punishable under Section 376 of the IPC and

all members of the family for other offences?

12. The fateful day that had played upon the 1st petitioner is

on 11-01-2023, the date on which the betrothal ceremony took

place, with the complainant. Talks of marriage between the

members of the family had also taken place, and the date of

marriage is to be fixed on 08-09-2023, these happen on the day of

betrothal ceremony. Therefore, one factum is clear that there was

no false promise of marriage. It is a marriage that had been

decided. In the considered view of the Court, it is not a false

promise of marriage. It was a betrothal ceremony and ensuing was

the marriage. The documents appended to the charge sheet or the

statements would no where drive home the point that on the

evening of the day of betrothal ceremony, the 1st petitioner had

indulged in such acts that would become ingredients of Section 375

of the IPC for it to become an offence under Section 376 IPC for

rape.
 VERDICTUM.IN

15

13. It becomes germane to notice the judgments of the Apex

Court on the issue, as to indulging in consensual acts of sexual

intercourse on the promise of marriage, would become an

ingredient of offence under Section 376 of the IPC or otherwise. 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 breach of 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

MAHARASHTRA1 has drawn distinction between rape and

consensual sexual relationships. Delineating the 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 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:

1
(2019) 9 SCC 608
 VERDICTUM.IN

16

“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:

“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
 VERDICTUM.IN

17

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)

“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.

***
 VERDICTUM.IN

18

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 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
 VERDICTUM.IN

19

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 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.”
 VERDICTUM.IN

20

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)
“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
 VERDICTUM.IN

21

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.”

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
 VERDICTUM.IN

22

thwart the bid to marry. The efforts made by the father of

the girl to establish the marital tie failed. Therefore, 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 and consensual sex. This is a
case of a prosecutrix aged 19 years at the time of the
 VERDICTUM.IN

23

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 and not fulfilling a false
promise. If the accused has not made the promise
 VERDICTUM.IN

24

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
lodged the complaint. It is not her case that the
 VERDICTUM.IN

25

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 Dr. DHRUVARAM MURALIDHAR SONAR V. STATE

OF MAHARASHTRA reported in (2019) 18 SCC 191 and had

obliterated the proceedings qua the accused.

14. 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 UTTARPRADESH AND

ANOTHER2 has held as follows:

2
2022 SCC OnLine SC 1032
 VERDICTUM.IN

26

“7. The parameters governing the exercise of the

jurisdiction of Section 482 of CrPC are well-settled and have
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:
 VERDICTUM.IN

27

“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.”

(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…”

11. In Pramod Suryabhan Pawar v. State of

Maharashtra,7 a two Judge Bench of this Court of which one of
 VERDICTUM.IN

28

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…
[…]
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.
 VERDICTUM.IN

29

(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 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
 VERDICTUM.IN

30

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)

15. In yet another judgment, the Apex Court in the case of

MANDAR DEEPAK PAWAR V. STATE OF MAHARASHTRA AND

ANOTHER3 has held as follows:

“1. 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 appellant. The complaint has
been filed only in 2016 after three years, pursuant whereto FIR
dated 16-12-2016 was registered.

2. On hearing learned counsel for parties, we find ex facie

the registration of FIR in the present case is abuse of the
criminal process.

3. 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

3
2022 SCC OnLine SC 2110
 VERDICTUM.IN

31

before or after marriage. Thereafter also three years

passed when respondent No.2 decided to register a FIR.

4. 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.

5. 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.

6. The Criminal appeal is accordingly allowed.

7. 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)

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.

The Apex Court delineates inter-play between the offence of rape

and a consensual sexual relationship, both on false promise of

 VERDICTUM.IN

32

marriage and promise of marriage. In the case at hand, as

observed hereinabove, there was no false promise of marriage. The

intention was to get married, as betrothal ceremony takes place.

Therefore, it cannot be brought under the ambit of false promise of

marriage.

16. It becomes opposite to refer to the judgment of the Apex

Court in the case of NAIM AHAMED v. STATE (NCT OF DELHI)4,

again delineating what would be false promise of marriage and a

promise of marriage, wherein the Apex Court has held as follows:

“…. …. ….

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.

4
2023 SCC OnLine SC 89
 VERDICTUM.IN

33

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 - 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.

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
 VERDICTUM.IN

34

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.

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.

14. In Uday v. State of Karnataka4, 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
 VERDICTUM.IN

35

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 -
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 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:—

“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
 VERDICTUM.IN

36

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.”

16. In Deepak Gulati v. State of Haryana5, this Court

gave one more dimension of the word ‘consent’ by
distinguishing ‘Rape’ and ‘consensual sex’ and observed as
under:

“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
 VERDICTUM.IN

37

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
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.

22. xxxxx

23. xxxxx

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”.

17. Again in Dr. Dhruvaram Murlidhar Sonar v. State of

Maharashtra (supra), this Court interpreting the Section 90 and
 VERDICTUM.IN

38

the Clause - Secondly in Section 375 of IPC, observed as

under:—

“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,
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.”

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.

19. After duly examining the record in the light of the

submissions made by the learned counsels for the parties,
following facts have emerged:—

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

 VERDICTUM.IN

39

(ii) Accused was staying in a tenanted premises situated in

front of the house of the prosecutrix.

(iii) Though initially hesitant, the prosecutrix developed liking for

the accused, and both started having sexual relationship
with each other.

(iv) The prosecutrix delivered a male child on 28/10/2011 from

the loin of the accused.

(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.

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

separate premises.

(vii) The prosecutrix and her husband took divorce by mutual

consent in 2014 and thereafter prosecutrix permanently left
her three children with her husband.

(viii) The prosecutrix lodged the complaint on 21st 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.

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
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40

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.”

(Emphasis supplied)

The Apex Court holds that there is a vast difference between false

promise of marriage and promise of marriage or breach of promise

of marriage. One cannot deny possibility of the accused making

promise with all seriousness to marry the complainant. The

circumstances beyond the control would have prevented to fulfill

the promise. It would be a folly to treat each breach of promise of

marriage as a false promise, and to prosecute a person for offences

punishable under Section 376 of the IPC. The observations of the

Apex Court would clearly become applicable to the facts of the case

at hand. The 1st petitioner also did not perform the alleged act on

false promise of marriage, it is allegedly performed on the date of

the betrothal ceremony. Therefore, it cannot be construed to be a

false promise of marriage. It at best could be a breach of promise

of marriage, which would not become an offence under Section 376

of the IPC.
 VERDICTUM.IN

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17. The other side of the coin in the complaint is that consent

of the complainant was taken out of deceit. It becomes apposite to

refer to the judgment of the Division Bench of the High Court of

Kerala which delineates the concept of consent and holds it to be an

enigma. The High Court of Kerala in the case of RAMACHANDRA

VS. STATE OF KERALA5, has held as follows:

“Understanding the ‘consent’ of a woman on a promise to

marry:
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

5
2022 SCC Online Ker 1652
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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 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
 VERDICTUM.IN

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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 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
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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 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, from time to

time. The finding rendered by the Division Bench of the High Court

of Kerala would also become squarely applicable to the contention

urged in the case at hand. Thus, falls the offence under Section

376 of the IPC against the 1st petitioner.

18. What remains is the offence of cheating as alleged under

Sections 417 and 420 of the IPC. Talks between the family
 VERDICTUM.IN

45

members for the date of marriage were also held fixing the date of

the marriage. It is the submission that invitation cards were got

printed for the marriage taking place on 08-09-2023. Marriage

tumbles not on any act of the members of the 1st petitioner’s family

or the complainant’s family. For manifold reasons, as averred in the

petition, the marriage has tumbled down. It is not a case where the

family of the 1st petitioner or the 1st petitioner had lured the

complainant or her family members to get into the marriage. It was

an agreement between both the families to perform the marriage of

the 1st petitioner with the complainant. Merely because the

engagement breaks, at a later date cannot amount to offence of

cheating against the 1st petitioner or his family members.

Therefore, there is no warrant to permit the trial to continue any

further, as permitting it, would on the face of it, become an abuse

of the process of law, resulting in patent injustice. It is in such

cases, the Apex Court in plethora of cases directs this Court to step

into exercise jurisdiction under Section 482 of the Cr.P.C., and

obliterate the crime against the accused, failing which, it would

become a misuse and abuse of the process of law, resulting in

miscarriage of justice.
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19. For the aforesaid reasons, the following:

ORDER

(i) Criminal Petition is allowed.

(ii) The proceedings in C.C.No.1926 of 2023 pending

before the Additional Civil Judge and JMFC,
Kundapura stand quashed.

Sd/-
JUDGE

BKP
CT:MJ