inkinccorporation@gmail.com Karnataka High Court
Teja G. E. @ Teju vs State By Hassan Rural Police on 10 February, 2026
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
CRIMINAL PETITION NO. 2682 OF 2025 (482(Cr.PC) /
528(BNSS)-)
BETWEEN:
TEJA G. E. @ TEJU
S/O EREGOWDA,
AGED ABOUT 28 YEARS,
RESIDING AT GANGOOR VILLAGE,
HALEBEEDU HOBLI, BELUR TALUK,
HASSAN DISTRICT -573211.
...PETITIONER
(BY SRI. HARISH KUMAR M C.,ADVOCATE)
AND:
1. STATE BY HASSAN RURAL POLICE
HASSAN, HASSAN DISTRICT,
Digitally REPRESENTED BY STATE PUBLIC PROSECUTOR
signed by HIGH COURT OF KARNATAKA
CHANDANA BANGALORE -560 001.
BM
Location: 2. SUSHEELA K.V.,
High Court of
Karnataka D/O VEERABHADREGOWDA,
AGED ABOUT 25 YEARS,
INDIAN OIL PETROL BUNK MANAGER,
VIJAYNAGAR, HASSAN
R/AT KAVALIKERE VILLAGE, AALUR TALUK,
HASSAN DISTRICT- 573 213.
...RESPONDENTS
(BY SMT. N. ANITHA GIRISH, HCGP FOR R1;
R2 IS SERVED AND UNREPRESENTED)
THIS CRL.P IS FILED U/S 482 CR.PC (FILED U/S 528 BNNS)
BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS
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HONOURABLE COURT MAY BE PLEASED TO QUASH THE ENTIRE
PROCEEDINGS IN C.C.NO.6302/2023 PENDING BEFORE THE ADDL.
CIVIL JUDGE AND JMFC-II COURT AT HASSAN FOR THE OFFENCE
P/U/S 376(2)(n), 420 OF IPC AND ALL FURTHER PROCEEDINGS
THEREON.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In this petition, petitioner seeks the following reliefs:
a) QUASH the entire proceedings in
C.C.No.6302/2023 pending before the Addl Civil
Judge & JMFC Court at Hassan for the offence
punishable under section 376(2)(n), 420 of IPC and
all further proceedings thereon.
b) PASS any other Order as this Hon’ble Court deems
fit in the facts and circumstances of the case, in the
interest of justice.
2. Heard learned counsel for the petitioner and learned
HCGP for respondent No.1. The respondent No.2- defacto
complainant having been served with notice of the petition has
chosen to remain unrepresented and has not contested the
petition.
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3. A perusal of the material on record will indicate that the
respondent No.2 has filed the impugned complaint, which is now
currently pending in the impugned proceedings in
C.C.No.6302/2023 for offences punishable under Sections
376(2)(n) and 420 of IPC. According to respondent No.2-defacto
complainant, the petitioner promised that he would marry the
respondent No.2 and had sexual intercourse with her and
thereafter, went back on his promise to marry and as such,
committed the alleged offences against respondent No.2. After
investigation, the respondent No.2 – Police authorities filed the
impugned charge sheet, which is assailed in the present petition.
4. Learned counsel for the petitioner would reiterate the
various contentions urged in the petition and invite my attention to
the impugned complaint and charge sheet summary in addition to
the charge sheet material, statements of witnesses, documents
etc., in order to contend that having sexual intercourse with mutual
consent on the pretext of marriage would not tantamount to
committing an offence punishable under Section 376 or Section
420 IPC, as held by the Hon’ble Apex Court and this Court in
several judgments including the recent judgment of Hon’ble Apex
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Court in the case of Samadhan v. State of Maharashtra and
another – 2025 INSC 1351 as well as this Court in the case of
XXX Vs. State of Karnataka and Anr., – Crl.P.No.1225/2025 c/w
Crl.P.No.2826/2025 dated 19.01.2026. It is therefore submitted
that the impugned proceedings deserve to be quashed as stated
supra.
5. In Samadhan‘s case supra, the Hon’ble Apex Court
held as under:
“Leave granted.
2. Being aggrieved by the order dated 06.03.2025
passed by the Bombay High Court at Aurangabad in
Criminal Application No. 601 of 2025 dismissing the
application filed by the appellant under Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (for short
“BNSS”) seeking quashing of FIR No. 294 of 2024,
registered with City Chowk Police Station, District
Chhatrapati Sambhajinagar City on 31.08.2024, for the
offences punishable under Sections 376, 376(2)(n) and 507
of the Indian Penal Code, 1860 (for short “IPC“), the
appellant is before this Court.
3. We have heard learned counsel for the appellant,
learned counsel for respondent No.1-State and learned
Amicus Curiae, Ms. Radhika Gautham, for respondent No.2
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as the latter has not responded to the notice issued and
served on her.
4. Briefly stated the facts of this case as per the
prosecution are that respondent No.2 had lodged a
complaint with City Chowk Police Station, District
Chhatrapati Sambhajinagar City, stating that she was
married to a person ABC in the year 2019 and had a minor
daughter out of the said wedlock. However, due to
matrimonial discord with her husband and in-laws, she had
been residing separately since May 2020 and was living
with her parents at Rajangaon, Taluka Paithan, District
Chhatrapati Sambhajinagar.
5. In July 2020, respondent No.2 had filed a
complaint against her husband at the Women’s Grievance
Redressal Centre, Office of Superintendent of Police,
Chatrapati Sambhajinagar. However, owing to the failure of
reconciliation between them, respondent No.2 initiated
proceedings against her husband seeking alimony/
maintenance from him.
6. It is in connection with the said proceedings that
respondent No.2, on 27.01.2022, was introduced to the
appellant, who is a practising advocate in the courts of
Aurangabad. Later, appellant took respondent No.2’s
contact number and the two regularly kept in touch on
WhatsApp and through phone calls. Over a period of time,
the appellant and respondent No.2 developed a close
relationship. It was then that the appellant proposed to meet
respondent No.2 in person at Vivekananda Garden in TV
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Centre. During the course of their meeting, the appellant
expressed his desire to marry respondent No.2. However,
owing to her troubled marital past, respondent No.2
declined the proposal. Despite her reluctance, the appellant
continued to insist on marriage at each subsequent
meeting.
7. On 12.03.2022, the appellant called respondent
No.2 to Hotel Citizen, near Mill Corner, Chhatrapati
Sambhajinagar, where he once again expressed his desire
to marry her and assured her that he would marry her
despite her concern that his mother might not approve of
the alliance. Based on such assurance, the appellant
established physical relations with her.
8. Subsequently, in September 2022, the
complainant discovered that she was pregnant with the
appellant’s child. However, with the consent of the
appellant, she aborted the child. Thereafter, when
respondent No.2 decided to part ways with the appellant, he
continued to assure her of marriage and engaged in further
sexual relations with her, as a result of which she got
pregnant again in July 2023 and later in May 2024. Both the
pregnancies were terminated.
9. On 20.05.2024, the appellant once again called
respondent No.2 to Hotel Citizen, where he engaged in
physical acts with her. Later, when respondent No.2 insisted
on marriage, the appellant flatly refused to marry her and
further threatened to kill her if she disclosed the matter to
anybody.
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10. Based on the aforesaid facts, FIR No. 294 of
2024 dated 31.08.2024 came to be registered against the
appellant for the offences punishable under Sections 376,
376(2)(n) and 507 of the IPC at City Chowk Police Station,
District Chhatrapati Sambhajinagar City.
11. Being aggrieved, the appellant filed an
anticipatory bail application bearing Criminal Bail
Application No. 1841 of 2024 before the Additional Sessions
Judge, Aurangabad (hereinafter referred to as “Trial Court”).
The Trial Court, by order dated 19.09.2024, allowed the
application and enlarged the appellant on anticipatory bail.
During the course of the investigation, both respondent No.
2 and her mother, in their statements, supported the
prosecution’s version of events. Subsequently, on
completion of the investigation, a charge-sheet bearing No.
143 of 2024 dated 25.10.2024 came to be filed against the
appellant under Sections 376, 376(2)(n) and 507 of the IPC.
12. Being aggrieved, the appellant preferred an
application bearing Criminal Application No. 601 of 2025
before the Bombay High Court at Aurangabad under
Section 528 of the BNSS, seeking quashing of FIR No. 294
of 2024. 13. By the impugned order dated 06.03.2025, the
High Court refused to quash the criminal proceedings
pending against the appellant in FIR No. 294 of 2024 on the
ground that a chargesheet had already been filed and the
matter was ready for trial; the appellant could not sufficiently
prove that the instant case was a clearly case of consensual
relationship; that the relationship between the appellant and
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respondent No.2 could be termed as a fiduciary relationship
inasmuch as the appellant was discussing the maintenance
case of respondent No.2 with her; and that in view of the
aforesaid, the facts of the present case warranted the
conduct of a trial to test the veracity of the allegations made
by respondent No.2 and to ascertain whether the acts
alleged to have occurred between the appellant and
respondent No.2 were against her will or otherwise.
14. We have heard learned counsel for the appellant
and learned counsel for the respondent-State and learned
Amicus on behalf of respondent No.2.
15. Learned counsel appearing for the appellant
submitted that the appellant has been falsely implicated as
there is no evidence against him with respect to the
commission of the offences punishable under Sections 376,
376(2)(n) and 507 of the IPC.
16. It is further submitted that the respondent No.2 is
a well- educated lady who is married and has a minor
daughter. It was contended that there is no divorce decree
passed between respondent No.2 and her husband.
Therefore, during the subsistence of her marriage,
respondent no.2 consequently entered into a relationship
with the appellant for a period of three years. Further, during
the subsistence of their relationship, no complaint
whatsoever was ever lodged by respondent No.2 against
the appellant. It was only in August 2024 after the appellant
refused to pay a sum of Rs.1,50,000/- demanded by
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respondent No.2, that in a fit of anger, she lodged the
present criminal case against him.
17. Learned counsel for the respondent-State, on the
other hand, supported the impugned order and submitted
that the allegations made by respondent No.2 discloses
commission of a cognizable offence and warrants no
interference at the threshold. It is submitted that the veracity
of the defence taken by the appellant is a matter for trial and
not for adjudication under the limited jurisdiction of a petition
for quashing.
18. Learned Amicus also supported the respondent-
State by contending that there is no merit in this appeal.
19. Having heard the learned counsel appearing for
the parties and having perused the material on record, the
only question that needs to be addressed is whether FIR
No. 294 of 2024 dated 31.08.2024, along with Chargesheet
No.143 of 2024 filed on 25.10.2024 against the appellant
herein, should be quashed
20. In the instant case the allegations in the FIR are
under Sections 376, 376(2)(n) and 507 of the IPC. An
offence of rape, if established in terms of Section 375 of the
IPC, is punishable under Section 376 of the IPC. In the
present case, the second description of Section 376 is
relevant which is set out below:
“376. Punishment for rape. – (1). Whoever, except in
the cases provided for in sub- section (2), commits
rape, shall be punished with rigorous imprisonment of
either description for a term which shall not be less
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than ten years, but which may extend to imprisonment
for life, and shall also be liable to fine.
2. Whoever, –
Xxx
(n) commits rape repeatedly on the same woman, shall
be punished with rigorous imprisonment for a term
which shall not be less than ten years, but which may
extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person’s natural
life, and shall also be liable to fine.
Explanation.–For the purposes of this sub-section,–
(a) “armed forces” means the naval, military and air
forces and includes any member of the Armed Forces
constituted under any law for the time being in force,
including the paramilitary forces and any auxiliary
forces that are under the control of the Central
Government or the State Government;
(b) “hospital” means the precincts of the hospital and
includes the precincts of any institution for the
reception and treatment of persons during
convalescence or of persons requiring medical
attention or rehabilitation;
(c) “police officer” shall have the same meaning as
assigned to the expression “police” under the Police
Act, 1861 (5 of 1861);
(d) “women’s or children’s institution” means an
institution, whether called an orphanage or a home for
neglected women or children or a widow’s home or an
institution called by any other name, which is
established and maintained for the reception and care
of women or children.”
21. Section 376(2)(n) of the IPC provides for
enhanced punishment in cases where rape is committed
repeatedly on the same woman. It mandates rigorous
imprisonment for a term of not less than ten years which
may extend to life imprisonment for the remainder of the
person’s natural life. The object of this provision is to
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address aggravated instances of sexual assault where the
offence is not a single incident but has occurred repeatedly
on the same victim. The expression “repeatedly” employed
in the provision is of significance. It contemplates more than
one act of sexual assault, committed at different points in
time on the same victim. Courts have consistently
interpreted this phrase to mean a series of acts that are
separate in nature and not a continuation of a single
transaction.
22. In genuine cases under Section 376(2)(n) of the
IPC, the pattern is usually unmistakable; it is an initial act of
sexual assault, followed by multiple acts under fear,
pressure, captivity, or continued deceit, often when the
woman is rendered vulnerable and unable to escape the
situation.
23. In the present case, a bare perusal of the FIR and
the statement on record reveals that respondent No.2 met
the appellant, who is a practicing advocate, for the first time
in reference to a case which was instituted by respondent
No.2 against her husband. Thereafter, they exchanged
numbers and regularly kept in touch. Over a passage of
time, respondent No.2 and the appellant developed a close
relationship and started meeting each other frequently.
During this time, they established sexual relations multiple
times between 12.03.2022 to 20.05.2024. The appellant
contends that during the course of their relationship, not
once did respondent No.2 file a complaint regarding the
alleged non-consensual sexual relations, and it is
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inconceivable that the appellant would force himself upon
her for so many years without there being any protest or
complaint from the side of respondent No.2. Notably, it was
only in August of 2024 when the appellant refused to fulfil
respondent No.2’s demand of payment of Rs.1,50,000/- that
the instant criminal case came to be instituted against the
appellant.
24. Another question which arises for consideration is
whether the appellant engaged in physical relationship with
respondent No.2 based on a deception or a false promise to
marry.
25. The allegation of rape in the present case hinges
entirely on respondent No.2’s claim that appellant
established physical relations with her on false pretext of
marriage. It is alleged by the appellant that respondent No.2
opposed the idea of marriage whenever the appellant
broached the said idea; however, the appellant kept on
insisting possibly this was because her first marriage was in
subsistence. It is, however, not clear as to why, despite
being opposed to the idea of marriage, respondent No.2
continued to meet the appellant and indulged in physical
relations with him even though she was already married.
26. The FIR in the present case also states that in
September 2022, when respondent No.2 found out that she
was pregnant with the appellant’s child, she told the
appellant, “You live your life and I will live my life”. At that
time, the appellant again assured her that they would get
married and asked for some time from respondent No.2, to
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which she refused. However, despite her refusal to be with
the appellant, respondent No.2 continued to meet him at
Hotel Citizen and engaged in physical relations with him.
27. In this regard, it becomes relevant to refer to the
decision of this Court in the case of Mahesh Damu Khare
vs. State of Maharashtra, (2024) 11 SCC 398, (“Mahesh
Damu”) wherein the following observations were made:
“27. In our view, if a man is accused of having sexual
relationship by making a false promise of marriage
and if he is to be held criminally liable, any such
physical relationship must be traceable directly to the
false promise made and not qualified by other
circumstances or consideration. A woman may have
reasons to have physical relationship other than the
promise of marriage made by the man, such as
personal liking for the male partner without insisting
upon formal marital ties.
28. Thus, in a situation where physical relationship is
maintained for a prolonged period knowingly by the
woman, it cannot be said with certainty that the said
physical relationship was purely because of the
alleged promise made by the appellant to marry her.
Thus, unless it can be shown that the physical
relationship was purely because of the promise of
marriage, thereby having a direct nexus with the
physical relationship without being influenced by any
other consideration, it cannot be said that there was
vitiation of consent under misconception of fact.”
(underlining by us)
28. We find that the present case is not a case where
the appellant lured respondent No.2 solely for physical
pleasures and then vanished. The relationship continued for
a period of three long years, which is a considerable period
of time. They remained close and emotionally involved. In
such cases, physical intimacy that occurred during the
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course of a functioning relationship cannot be
retrospectively branded as instances of offence of rape
merely because the relationship failed to culminate in
marriage.
29. This Court has, on numerous occasions, taken
note of the disquieting tendency wherein failed or broken
relationships are given the colour of criminality. The offence
of rape, being of the gravest kind, must be invoked only in
cases where there exists genuine sexual violence, coercion,
or absence of free consent. To convert every sour
relationship into an offence of rape not only trivialises the
seriousness of the offence but also inflicts upon the
accused indelible stigma and grave injustice. Such
instances transcend the realm of mere personal discord.
The misuse of the criminal justice machinery in this regard
is a matter of profound concern and calls for condemnation.
30. In Prashant vs. State of NCT of Delhi, (2025) 5
SCC 764, this Court speaking through one of us
(Nagarathna, J.) observed that a mere break-up of a
relationship between a consenting couple cannot result in
the initiation of criminal proceedings. What was a
consensual relationship between the parties at the initial
stages cannot be given a colour of criminality when the said
relationship does not fructify into a marriage. The relevant
portion is extracted as under:
“20. In our view, taking the allegations in the FIR and
the charge-sheet as they stand, the crucial
ingredients of the offence under Section
376(2)(n)IPC are absent. A review of the FIR and the
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complainant’s statement under Section 164CrPC
discloses no indication that any promise of marriage
was extended at the outset of their relationship in
2017. Therefore, even if the prosecution’s case is
accepted at its face value, it cannot be concluded
that the complainant engaged in a sexual relationship
with the appellant solely on account of any
assurance of marriage from the appellant. The
relationship between the parties was cordial and also
consensual in nature. A mere break up of a
relationship between a consenting couple cannot
result in initiation of criminal proceedings. What was
a consensual relationship between the parties at the
initial stages cannot be given a colour of criminality
when the said relationship does not fructify into a
marital relationship. Further, both parties are now
married to someone else and have moved on in their
respective lives. Thus, in our view, the continuation
of the prosecution in the present case would amount
to a gross abuse of the process of law. Therefore, no
purpose would be served by continuing the
prosecution.”
(underlining by us)
31. This Court is conscious of the societal context in
which, in a country such as ours, the institution of marriage
holds deep social and cultural significance. It is, therefore,
not uncommon for a woman to repose complete faith in her
partner and to consent to physical intimacy on the
assurance that such a relationship would culminate in a
lawful and socially recognised marriage. In such
circumstances, the promise of marriage becomes the very
foundation of her consent, rendering it conditional rather
than absolute. It is, thus, conceivable that such consent
may stand vitiated where it is established that the promise
of marriage was illusory, made in bad faith, and with no
genuine intention of fulfilment, solely to exploit the woman.
The law must remain sensitive to such genuine cases
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where trust has been breached and dignity violated, lest the
protective scope of Section 376 of the IPC be reduced to a
mere formality for those truly aggrieved. At the same time,
the invocation of this principle must rest upon credible
evidence and concrete facts, and not on unsubstantiated
allegations or moral conjecture.
32. Upon a careful consideration of the record in the
present case, we are unable to discern any material that
would warrant the invocation of Section 376(2)(n) of the
IPC. The facts of the present case unmistakably indicate
that it is a classic instance of a consensual relationship
having subsequently turned acrimonious.
33. The appellant has unequivocally asserted that,
during the subsistence of the relationship, no grievance or
allegation was ever raised by respondent No.2 regarding
the absence of consent in their physical relations. It was
only upon the appellant’s refusal to fulfil her demand for
payment of the sum of Rs.1,50,000/- that the present
criminal proceedings came to be instituted. Furthermore,
the alleged incidents are stated to have occurred between
12.03.2022 and 20.05.2024; however, the FIR was lodged
only on 31.08.2024, i.e. nearly three months after the last
alleged act of sexual intimacy.
34. The FIR is conspicuously silent as to any specific
allegation that the appellant had either forcibly taken or
compelled respondent No.2 to accompany him to the hotel,
nor does it disclose any circumstance suggesting deceit or
inducement on the part of the appellant to procure her
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presence there. Therefore, the only logical inference that
emerges is that respondent No.2, of her own volition, visited
and met the appellant on each occasion. It is also borne out
from the record that whenever the appellant brought up the
subject of marriage, respondent No.2 herself opposed the
proposal. In such circumstances, the contention of
respondent No.2 that the physical relationship between the
parties was premised upon any assurance of marriage by
the appellant is devoid of merit and stands unsustainable.
35. We deem it appropriate to refer to the decision of
this Court in Rajnish Singh vs. State of Uttar Pradesh,
(2025) 4 SCC 197, whereby it was held that when a woman
who willingly engages in a long-term sexual relationship
with a man, fully aware of its nature and without any cogent
evidence to show that such relationship was induced by
misconception of fact or false promise of marriage made in
bad faith from the inception, the man cannot be held guilty
of rape under Section 376 of the IPC. The relevant portion
of the judgment is extracted as under:
“33. There is no dispute that from the year 2006
onwards, the complainant and the appellant were
residing in different towns. The complainant is an
educated woman and there was no pressure
whatsoever upon her which could have prevented her
from filing a police complaint against the accused if
she felt that the sexual relations were under duress or
were being established under a false assurance of
marriage. On many occasions, she even portrayed
herself to be the wife of the appellant thereby,
dispelling the allegation that the intention of the
appellant was to cheat her right from the inception of
the relationship.
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34. We cannot remain oblivious to the fact that it was
mostly the complainant who used to travel to meet the
appellant at his place of posting. Therefore, we are
convinced that the relationship between the
complainant and the appellant was consensual
without the existence of any element of deceit or
misconception.
35. Further, the application filed by the complainant at
One Stop Centre, Lalitpur on 23-3-2022, makes it
abundantly clear that she was in a consensual
relationship with the appellant since 2006. It is alleged
in the complaint that when she had proposed that they
should marry and live together, the appellant
physically abused her and beat her up. If at all there
was an iota of truth in this allegation then the FIR
should have been registered immediately after this
incident. However, it is only when it came to the
knowledge of the complainant that the appellant was
getting married to another woman, in an attempt to
stop his marriage, she filed aforesaid complaint at the
One Stop Centre wherein she also admitted that she
was equally guilty as the appellant and therefore, his
marriage must be stopped.
xxx
39. It is, therefore, clear that the accused is not liable
for the offence of rape if the victim has wilfully agreed
to maintain sexual relations. The Court has also
recognised that a prosecutrix can agree to have
sexual intercourse on account of her love and passion
for the accused.”
(underlining by us)
36. By the impugned order dated 06.03.2025, the
High Court observed that although it was contended on
behalf of the appellant that the relationship between him
and respondent No. 2 was consensual in nature, no such
categorical statement was made by him in the memo of
application and that the plea of consent was merely
inferred. In this regard, reliance was placed by the High
Court on the case of Ganga Singh vs. State of Madhya
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Pradesh, (2013) 7 SCC 278, wherein this Court had stated
that unless there was a specific defence of a consensual
relationship, such a defence cannot be inferred.
37. The said finding of the High Court, however, fails
to appreciate that a plain reading of the FIR in question
itself reveals that the relationship between the parties was,
in fact, consensual, inasmuch as respondent No.2 met the
appellant whenever he expressed a desire to meet her.
Furthermore, respondent No. 2, being a major and an
educated individual, voluntarily associated with the
appellant and entered into physical intimacy on her own
volition. It is also pertinent to note that, at the relevant time,
the marriage of respondent No.2 was subsisting. In light of
the foregoing circumstances, even upon a bare reading of
the material on record, it is manifest that the relationship
between the parties was consensual, and therefore, the
absence of an express statement to that effect in the memo
of application, as emphasized in the impugned order,
cannot be held against the appellant when the same can be
otherwise clearly discerned.
38. At this stage it is material to refer to the decision
of this Court in Mahesh Damu, wherein the following
observations were made:
“29. It must also be clear that for a promise to be a
false promise to amount to misconception of fact
within the meaning of Section 90IPC, it must have
been made from the very beginning with an intention
to deceive the woman to persuade her to have a
physical relationship. Therefore, if it is established that
such consent was given under a misconception of
fact, the said consent is vitiated and not a valid
– 20 –
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consent. In this regard we may refer to Deepak Gulati
v. State of Haryana [Deepak Gulati v. State of
Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660]
, in which it was held as follows: (SCC pp. 682-84,
paras 21 & 24)“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
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.
xxx
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
– 21 –
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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.”
(underlining by us)
39. In State of Haryana vs. Bhajan Lal, 1992 Supp
(1) SCC 335, this Court formulated the parameters in terms
of which the powers under Section 482 of the Code of
Criminal Procedure, 1973 (now Section 528 of the BNSS)
could be exercised. While it is not necessary to revisit all
these parameters, a few that are relevant to the present
case may be set out. The Court held that quashing may be
appropriate:
“102. xxx
(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
– 22 –
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the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
xxx”
40. In view of the foregoing analysis, we are unable
to concur with the findings recorded by the High Court,
inasmuch as the present case pertains to a consensual
relationship, and the acts of respondent No.2 clearly
manifest consent to such a relationship devoid of any
coercion, fraud, or misrepresentation as contemplated in
Section 19 of the Indian Contract Act, 1872. In our opinion,
the High Court’s refusal to exercise its jurisdiction under
Section 528 of BNSS is unsustainable. The acts complained
of in the present case occurred within the contours of a
relationship that was, at the time, voluntary and willing. The
continuation of the prosecution in such facts would be
nothing short of an abuse of the court machinery.
41. We accordingly allow the appeal and set aside
the impugned judgment and order of the High Court dated
06.03.2025 in application under Section 528 BNSS bearing
Criminal Application No. 601 of 2025. The said application
accordingly stands allowed. Consequently, FIR No. 294 of
2024 dated 31.08.2024, registered with City Chowk Police
Station, District Chhatrapati Sambhajinagar City under
Sections 376, 376(2)(n) and 507 of the IPC and
Chargesheet No. 143 of 2024 dated 25.10.2024, filed in the
Court of the 3rd Judicial Magistrate First Class,
Aurangabad, accordingly stands quashed.
– 23 –
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42. We express our sincere appreciation of the
services rendered by Ms. Radhika Gowtam, learned
Advocate-on-Record who had been appointed as Amicus
Curiae in the matter. Registry of this Court is directed to pay
honorarium of Rs.15,000/- (Rupees Fifteen Thousand only)
to the learned Amicus Curiae.
6. So also, this Court in the case of XXX Vs. The State
of Karnataka and Anr., stated (supra) held as under:
“Criminal Petition No.1225 of 2025 is filed by
accused No.1 and the companion petition in Criminal
Petition No.2826 of 2025 is filed by accused Nos. 2 and 3.
These petitioners challenge a common crime in Crime
No.789 of 2024. The complainant is common. Therefore,
these petitions are taken up together and considered by
this common order.
2. For the sake of convenience, the facts
obtaining in Criminal Petition No.1225 of 2025 would be
narrated. In this order, accused No.1 would be referred as
the petitioner, for easy reference.
3. Facts, in brief, germane are as follows: –
3.1. The petitioner is said to be in relationship with
the complainant. Accused 2 and 3 in the companion
petition are the relatives of accused No.1. It is the
averment in the petition that the 2nd
– 24 –
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respondent/complainant is a resident of Anjananagara for
the last 4 to 5 years and her marriage had taken place 10
years ago with a particular person and the complainant has
a child born from the said wedlock. In the year 2014, the
averment in the petition is that the complainant again
married one Yathish Kumar T.R. and the said marriage got
dissolved in the year 2020 and from the said wedlock she
has a child of 4 years now. In the year 2020, it appears
that she gets acquainted with the present petitioner, a
practicing Advocate in a case pertaining to Negotiable
Instruments Act. The complainant alleges that during the
conversation with the petitioner, he took the telephone
number of the complainant and began conversation. The
conversation turned into personal and the petitioner
thereafter in the year 2022 sent a friend request on
Instagram of the complainant and also made phone call to
the complainant requesting her to accept his request.
Accordingly, friendship between the complainant and the
petitioner developed and the friendship further blossomed
into having physical relationship as well.
3.2. The petition further narrates that in the month
of July 2023 the petitioner came to the house of the
complainant and expressed that he is willing to marry her
and on the pretext of marriage has had physical
relationship which continued thereafter and on the breach
of said promise of marriage, the complainant registers a
complaint before the jurisdictional Police on 09-12-2024 not
only against the petitioner but also against relatives of the
– 25 –
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petitioner. Registration of crime has driven the petitioners
to this Court in the subject petitions.
4. Heard Sri Abhishek Kumar, learned counsel
for the petitioner/accused No.1, Sri Punith C, learned
counsel appearing for the petitioners/accused 2 and 3; Ms.
Asma Kouser, learned Additional State Public Prosecutor
appearing for respondent No.1 in both the petitions and Sri
Akshay R. Huddar, learned counsel appearing for
respondent No.2/complainant in both the petitions.
SUBMISSIONS:
PETITIONER’S:
5. The learned counsel appearing for the
petitioners would vehemently contend that there is no
physical relationship between the petitioner and the 2nd
respondent/complainant at all. It is all concocted story
which the complainant is used to. He would contend that
the complainant is already married not once but twice, and
a person who is already married cannot project physical
relationship on the promise of marriage. He would submit
that the complainant is in the habit of indulging in such acts
of trapping every man and registering crimes against them.
He would submit that if further proceedings are permitted to
be continued, it would become an abuse of the process of
law. To buttress his submissions, he takes this Court
through the documents appended to the petition to
demonstrate marriage of the complainant with one Yathish
Kumar T. R. and proceedings of annulment of marriage
– 26 –
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with Yathish Kumar T. R. and a crime being registered for
offences punishable under Section 363 of the IPC when the
child that the complainant had from the first marriage who
was by then 13 years old goes missing, only to contend
that the complainant who was married not once but twice,
is wanting to project that the petitioner has had physical
relationship with the complainant on the promise of
marriage. He would submit that there is neither physical
relationship nor promise of marriage.
COMPLAINANT AND STATE:
6. Contrariwise, the learned counsel appearing for
the 2nd respondent/complainant would vehemently refute
the submissions in contending that the crime is registered
only on 09-12-2024. The investigation should be permitted
to continue. It is only then the truth will come out. The
petitioner has had relationship with the complainant as an
Advocate and a client for the last 3 years prior to
registration of crime. The physical relationship have
happened between the two on the pretext of promise of
marriage. The complainant, though is married, came in
contact with the petitioner on divorce. In the light of her
being single, all possibilities of physical relationship on the
pretext of marriage can spring. It cannot be said that the
crime should be nipped in the bud.
7. The learned Additional State Public
Prosecutor Ms. Asma Kouser would toe the lines of the
learned counsel for the complainant in contending that the
– 27 –
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crime must not be obliterated and at the outset
investigation should be permitted in the case at hand.
8. The learned counsel for the petitioner would
now join issue to contend that divorce between Yatish
Kumar.T.R. and the complainant though has happened in
the year 2020, they are still living together. He would take
this Court through the documents and the photographs to
demonstrate that they are living together. Therefore, he
would submit that all the narration of physical relationship
on pretext of marriage is a figment of imagination of the
complainant.
9. I have given my anxious consideration to the
submissions made by the respective learned counsel and
have perused the material on record.
CONSIDERATION:
10. The relationship of the parties to the lis are as
narrated hereinabove covering both these petitions. The
facts, dates and link in the chain of events are again not in
dispute. It would suffice if the narration would commence
from the complainant getting married to one Yathish Kumar
T. R. The marriage between the complainant and Yathish
Kumar T. R. happens on 30-05-2014. The certificate of
marriage is appended to the petition. It appears that the
complainant’s relationship with the said Yathish Kumar T.
R. flounders and floundering of the relationship leads the
complainant seeking annulment of marriage in
M.C.No.3017 of 2015. The said matrimonial case is
– 28 –
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disposed of on account of settlement and the marriage got
dissolved on 22-10-2016. The petitioner was nowhere in
the picture till the said date. According to the complainant
after the grant of decree of divorce, a child is born from the
wedlock in the year 2020. In the year 2023, for legal
assistance in a case concerning Negotiable Instruments
Act, the petitioner and the complainant come to know each
other. It is here, the petitioner comes into the picture. Two
years pass by. The complainant then seeks to register a
complaint before the jurisdictional Police on 09-12-2024.
Since the subject issue is triggered from the registration of
complaint, I deem it appropriate to notice the complaint. It
reads as follows:
"ರವ ೆ,
ೕ ೕ ಇ ೆಕ .
ಾ ಡರಹ ೕ ೕ ಾ ೆ,
ೆಂಗಳ ರು ನಗರ.
ಇಂದ.
#ಾಗರತ% ಎ ' #ಾಗ(ಾಜು, 29ವಷ+
,ಾಸ ನಂ.ಇಲ/, ಬ ' 1ಂ2, 34ೕ5#ಾಯಕ 7ಾ8ೆಯ ರ9ೆ:,
ಅಂಜನನಗರ <ಾಗ= ರ9ೆ:, ೆಂಗಳ ರು-560091.
>ಾ?: ಒಕA ಗ, B ೈD ಸಂEೆ :9686382940
Email Id: [email protected]
<ಾನ (ೇ.
5ಷಯ:- XXXX, <ಾಲ ಮತು: ಮೂ?+ರವರ 5ರುದI Jಾನೂನು ಕ4ಮ ಜರುKಸಲು
Jೋ ದೂರು.
–**–
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– 29 –
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CRL.P No. 2682 of 2025
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– 31 –
NC: 2026:KHC:8087
CRL.P No. 2682 of 2025HC-KAR
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ಸ•ಳ: ೆಂಗಳ ರು ನಗರ.
Sd/-
Nagarathna N.”
The narration in the complaint is with regard to
certain sexual escapades of the petitioner with the
complainant. At the penultimate paragraph, the
complainant narrates that the attitude of the petitioner
suddenly changed and began to ignore the calls of the
complainant. Later it is the narration that she comes to
know that the parents of the petitioner are searching for a
girl to get accused No.1 married. Therefore, the complaint
comes to be registered as the petitioner has, on several
occasions committed the offence of rape for two years, on
the pretext of marriage, but he is wanting to get married
with someone else. She further narrates that due to the
acts of the petitioner in the year 2024 she had even
become pregnant and the petitioner told the complainant to
get the pregnancy terminated. Immediately after
registration of the complaint, these petitions are preferred.
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11. A perusal at the complaint would indicate that
even if it is taken on its face value, they were consensual
acts for two years whether on the pretext of marriage or
otherwise. Jurisprudence is replete with the judgments
rendered by the Apex Court from time to time, which has
intertwined the concept of rape and consensual sex and
how consensual sex on the promise of marriage cannot
amount to rape. I deem it appropriate to notice the said
judgments.
JUDICIAL LANDSCAPE:
12.1. The Apex Court in the case of DR.
DHRUVARAM MURLIDHAR SONAR v. THE STATE OF
MAHARASHTRA – (2019) 18 SCC 191 has held as
follows:
".... .... ....
11. In State of Karnataka v. M.
Devendrappa [State of Karnataka v. M.
Devendrappa, (2002) 3 SCC 89 : 2002 SCC (Cri)
539] , it was held that while exercising powers
under Section 482 CrPC, the court does not
function as a court of appeal or revision. Inherent
jurisdiction under the section though wide has to be
exercised sparingly, carefully and with caution and
only when such exercise is justified by the tests
specifically laid down in the section itself. It was
further held as under : (SCC p. 94, para 6)
“6. … It would be an abuse of process
of the court to allow any action which would
result in injustice and prevent promotion of
justice. In exercise of the powers court would
be justified to quash any proceeding if it finds
that initiation/continuance of it amounts to
abuse of the process of court or quashing of
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these proceedings would otherwise serve the
ends of justice. When no offence is disclosed
by the complaint, the court may examine the
question of fact. When a complaint is sought to
be quashed, it is permissible to look into the
materials to assess what the complainant has
alleged and whether any offence is made out
even if the allegations are accepted in toto.”
… … …
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.
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
– 34 –
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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
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)
12.2. Later, the Apex Court in the case of
SHAMBHU KHARWAR v. STATE OF UTTAR PRADESH-
(2022) SCC OnLine SC 1032 has held as follows:
“…. …. ….
9. In Pramod SuryabhanPawar v. State of
Maharashtra [Pramod SuryabhanPawar v. State of
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Maharashtra, (2019) 9 SCC 608 : (2019) 3 SCC
(Cri) 903] a two-Judge Bench of this Court of which
one of us was a part (D.Y. Chandrachud, J.), held
in Sonu v. State of U.P. [Sonu v. State of U.P.,
(2021) 18 SCC 517] observed that: (Pramod
SuryabhanPawar case [Pramod
SuryabhanPawar v. State of Maharashtra, (2019) 9
SCC 608 : (2019) 3 SCC (Cri) 903] , SCC pp. 616-
18 & 620, paras 12, 14, 16 & 18)
“12. This Court has repeatedly held that
consent with respect to Section 375IPC
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
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involve an active and reasoned deliberation
towards the proposed act. To establish
whether the “consent” was vitiated by a
“misconception of fact” arising out of a promise
to marry, two propositions must be
established. The promise of marriage must
have been a false promise, given in bad faith
and with no intention of being adhered to at
the time it was given. The false promise itself
must be of immediate relevance, or bear a
direct nexus to the woman’s decision to
engage in the sexual act.”
(emphasis supplied)
... ... ...
11. 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 376IPC. 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
375IPC 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.
12. 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
482CrPC. 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 376IPC were not established. The
High Court has, therefore, proceeded to dismiss the
application under Section 482CrPC on a completely
misconceived basis.”
(Emphasis supplied)
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12.3. In XXXX v. STATE OF MADHYA PRADESH
– (2024) 3 SCC 496, the Apex Court holds as follows:
“…. …. ….
9. While getting her statement recorded
under Section 164CrPC, she admitted that she
knew the appellant since 2017. On account of
dispute with her husband, she was living with her
parents. As she got acquainted with the appellant,
they fell in love. In 2018, the appellant went to
Maharashtra for job. However, he used to visit her
home and take care of the complainant as well as
her daughter. In 2019, the appellant assured the
complainant that he will marry her in case she takes
divorce from her husband who used to harass and
beat her. For this reason, she divorced her husband
and solemnised marriage with the appellant in a
temple in January 2019. Thereafter, they started
living together with her daughter born from the
previous marriage. Despite assurance, the
appellant did not solemnise court marriage. After
marriage was solemnised in temple, treating the
appellant as her husband, they both started leading
a married life having physical relations from
January 2019 till June 2020. The appellant treated
the complainant as his wife. Thereafter, the
appellant refused to respond to her calls and even
marry her.
… … …
11. Further, in the FIR the complainant
stated that she got divorce from her earlier husband
on 10-12-2018. In the statement under Section
164CrPC, she stated that marriage between the
appellant and the complainant was solemnised in a
temple in January 2019. However, the date of
divorce as claimed by the complainant is belied
from the copy of the decree annexed with the
appeal as Annexure P-9, where divorce by mutual
consent was granted to the complainant and her
husband vide judgment dated 13-1-2021. The
aforesaid fact could not be disputed. Meaning
thereby, the complainant besides the facts in the
FIR and also in the statement under Section
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164CrPC regarding her divorce from the earlier
marriage, sought to claim that she had remarried
with the appellant during subsistence of her earlier
marriage.
12. From the contents of the complaint,
on the basis of which FIR was got registered
and the statement got recorded by the
complainant, it is evident that there was no
promise to marry initially when the relations
between the parties started in the year 2017. In
any case, even on the dates when the
complainant alleges that the parties had
physical relations, she was already married. She
falsely claimed that divorce from her earlier
marriage took place on 10-12-2018. However,
the fact remains that decree of divorce was
passed only on 13-1-2021. It is not a case where
the complainant was of an immature age who
could not foresee her welfare and take right
decision. She was a grown up lady about ten
years elder to the appellant. She was matured
and intelligent enough to understand the
consequences of the moral and immoral acts
for which she consented during subsistence of
her earlier marriage. In fact, it was a case of
betraying her husband. It is the admitted case of
the prosecutrix that even after the appellant
shifted to Maharashtra for his job, he used to
come and stay with the family and they were
living as husband and wife. It was also the
stand taken by the appellant that he had
advanced loan of Rs 1,00,000 to the prosecutrix
through banking channel which was not
returned back.”
(Emphasis supplied)
12.4. In JASPAL SINGH KAURAL v. STATE OF
NCT OF DELHI – (2025) 5 SCC 756, the Apex Court has
held as follows:
".... .... ....
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13. At the outset, we refer to the ratio
in Naim Ahamed v. State (NCT of Delhi) [Naim
Ahamed v. State (NCT of Delhi), (2023) 15 SCC
385] whereby this Hon’ble Court had decided a
similar matter, wherein allegedly, the
prosecutrix had also given her consent for a
sexual relationship with the appellant-accused,
upon an assurance to marry. The prosecutrix,
who was herself a married woman having three
children, had continued to have such
relationship with the appellant-accused, at least
for about five years till she gave the complaint.
In the conspectus of such facts and circumstances,
this Court had observed as under : (SCC pp. 398-
99, paras 21-22)
“21. 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 the law and the case fell under
Clause Secondly of Section 375IPC. 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 deceived 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 control, which
prevented him to fulfil 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.
22. In the instant case, the
prosecutrix who herself was a married
woman having three children, could not be
said to have acted under the alleged false
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promise given by the appellant or under the
misconception of fact while giving the
consent to have sexual relationship with
the appellant. Undisputedly, she continued
to have such relationship with him at least
for about five years till she gave complaint
in the year 2015. Even if the allegations
made by her in her deposition before the
court, are taken on their face value, then
also to construe such allegations as “rape”
by the appellant, would be stretching the
case too far. The prosecutrix being a
married woman and the mother of three
children was mature and intelligent enough
to understand the significance and the
consequences of the moral or immoral
quality of act she was consenting to. Even
otherwise, if her entire conduct during the
course of such relationship with the
accused, is closely seen, it appears that
she had betrayed her husband and three
children by having relationship with the
accused, for whom she had developed
liking for him. She had gone to stay with
him during the subsistence of her marriage
with her husband, to live a better life with
the accused. Till the time she was
impregnated by the accused in the year
2011, and she gave birth to a male child
through the loin of the accused, she did not
have any complaint against the accused of
he having given false promise to marry her
or having cheated her. She also visited the
native place of the accused in the year 2012
and came to know that he was a married
man having children also, still she
continued to live with the accused at
another premises without any grievance.
She even obtained divorce from her
husband by mutual consent in 2014,
leaving her three children with her
husband. It was only in the year 2015 when
some disputes must have taken place
between them, that she filed the present
complaint. The accused in his further
statement recorded under Section 313CrPC
had stated that she had filed the complaint
as he refused to fulfil her demand to pay
her huge amount. Thus, having regard to
the facts and circumstances of the case, it
could not be said by any stretch of
imagination that the prosecutrix had given
– 41 –
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her consent for the sexual relationship with
the appellant under the misconception of
fact, so as to hold the appellant guilty of
having committed rape within the meaning
of Section 375IPC.”
(emphasis supplied)
14. The decision in Naim Ahamed [Naim
Ahamed v. State (NCT of Delhi), (2023) 15 SCC
385] is squarely applicable to the conspectus of
present case. It has been time and again settled
by this Hon’ble Court, that the mere fact that
physical relations were established pursuant to
a promise to marry will not amount to a rape in
every case. An offence under Section 375IPC
could only be made out, if promise of marriage
was made by the accused solely with a view to
obtain consent for sexual relations without
having any intent of fulfilling said promise from
the very beginning, and that such false promise
of marriage had a direct bearing on the
prosecutrix giving her consent for sexual
relations. [Mahesh DamuKhare v. State of
Maharashtra, (2024) 11 SCC 398 : 2024 SCC
OnLine SC 3471]
15. Upon a bare perusal of the FIR and the
charge-sheet, the following facts are clearly
established:
15.1. The physical relationship between the
appellant and Respondent 2 was consensual from
the very beginning and cannot be said to be against
the will or without the consent of the prosecutrix.
Even if the case of the prosecutrix is accepted,
there is no material on record to show that there
was any dishonest inducement, or incitement on
part of the appellant.”
15.2. There is also no material on record, to
establish an offence of criminal intimidation under
Section 506IPC against the appellant. In fact, it is
apparent from the conduct of the appellant, that he
was acting in furtherance of the promise to marry. It
is the own observation of the High Court, that the
– 42 –
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appellant had made a promise to marry
Respondent 2 and was acting accordingly. The
mangalsutra being prepared with the initials of the
name of Respondent 2 complainant does reflect his
intention and promise to marry. However, in the
eventuality of a fall out or split between the parties,
it cannot be said that the promise to marry was
false, and the corresponding conduct dishonest.
15.3. There is also no element of
criminality that can be accrued to the appellant,
insofar as it is the own case of the prosecutrix,
that she was in a relationship with the appellant,
while being in a subsisting marriage. It is also
hard to believe that the prosecutrix could have
sustained a physical relationship for a
prolonged period of five years [Prashant v.
State (NCT of Delhi), (2025) 5 SCC 764] , while
being in a subsisting marriage, and even
subsequently obtaining divorce to sustain the
relationship. The prolonged period of the
relationship, during which the sexual relations
continued between the parties, is sufficient to
conclude that there was never an element of
force or deceit in the relationship. [Mahesh
Damu Khare v. State of Maharashtra, (2024) 11
SCC 398 : 2024 SCC OnLine SC 3471] The
prosecutrix was thus, conscious and cognizant
of the consequences of her actions, and had
given her consent after an active and reasoned
deliberation. [Pramod Suryabhan Pawar v. State
of Maharashtra, (2019) 9 SCC 608 : (2019) 3 SCC
(Cri) 903]”
(Emphasis supplied)
12.5. In SAMADHAN v. STATE OF
MAHARASHTRA – 2025 SCC OnLine SC 2528, the Apex
Court has held as follows:
“…. …. ….
28. We find that the present case is not a
case where the appellant lured respondent No. 2
solely for physical pleasures and then vanished.
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The relationship continued for a period of three
long years, which is a considerable period of
time. They remained close and emotionally
involved. In such cases, physical intimacy that
occurred during the course of a functioning
relationship cannot be retrospectively branded as
instances of offence of rape merely because the
relationship failed to culminate in marriage.
29. This Court has, on numerous
occasions, taken note of the disquieting tendency
wherein failed or broken relationships are given
the colour of criminality. The offence of rape,
being of the gravest kind, must be invoked only in
cases where there exists genuine sexual violence,
coercion, or absence of free consent. To convert
every sour relationship into an offence of rape not
only trivialises the seriousness of the offence but
also inflicts upon the accused indelible stigma
and grave injustice. Such instances transcend the
realm of mere personal discord. The misuse of
the criminal justice machinery in this regard is a
matter of profound concern and calls for
condemnation.
30. In Prashant v. State of NCT of
Delhi, (2025) 5 SCC 764, this Court speaking through
one of us (Nagarathna, J.) observed that a mere
break-up of a relationship between a consenting
couple cannot result in the initiation of criminal
proceedings. What was a consensual relationship
between the parties at the initial stages cannot be
given a colour of criminality when the said
relationship does not fructify into a marriage. The
relevant portion is extracted as under:
“20. In our view, taking the
allegations in the FIR and the charge-
sheet as they stand, the crucial
ingredients of the offence under Section
376(2)(n)IPC are absent. A review of the
FIR and the complainant’s statement
under Section 164CrPC discloses no
indication that any promise of marriage
was extended at the outset of their
relationship in 2017. Therefore, even if the
prosecution’s case is accepted at its face
– 44 –
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value, it cannot be concluded that the
complainant engaged in a sexual
relationship with the appellant solely on
account of any assurance of marriage
from the appellant. The relationship
between the parties was cordial and also
consensual in nature. A mere break up of
a relationship between a consenting
couple cannot result in initiation of criminal
proceedings. What was a consensual
relationship between the parties at the
initial stages cannot be given a colour of
criminality when the said relationship does
not fructify into a marital relationship.
Further, both parties are now married to
someone else and have moved on in their
respective lives. Thus, in our view, the
continuation of the prosecution in the
present case would amount to a gross
abuse of the process of law. Therefore, no
purpose would be served by continuing
the prosecution.”
(underlining by us)
31. This Court is conscious of the societal
context in which, in a country such as ours, the
institution of marriage holds deep social and cultural
significance. It is, therefore, not uncommon for a
woman to repose complete faith in her partner and to
consent to physical intimacy on the assurance that
such a relationship would culminate in a lawful and
socially recognised marriage. In such circumstances,
the promise of marriage becomes the very foundation
of her consent, rendering it conditional rather than
absolute. It is, thus, conceivable that such consent
may stand vitiated where it is established that the
promise of marriage was illusory, made in bad faith,
and with no genuine intention of fulfilment, solely to
exploit the woman. The law must remain sensitive to
such genuine cases where trust has been breached
and dignity violated, lest the protective scope of
Section 376 of the IPC be reduced to a mere
formality for those truly aggrieved. At the same time,
the invocation of this principle must rest upon credible
evidence and concrete facts, and not on
unsubstantiated allegations or moral conjecture.
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... .... ...
33. The appellant has unequivocally asserted
that, during the subsistence of the relationship, no
grievance or allegation was ever raised by
respondent No. 2 regarding the absence of consent
in their physical relations. It was only upon the
appellant’s refusal to fulfil her demand for payment of
the sum of Rs. 1,50,000/- that the present criminal
proceedings came to be instituted. Furthermore, the
alleged incidents are stated to have occurred
between 12.03.2022 and 20.05.2024; however, the
FIR was lodged only on 31.08.2024, i.e. nearly three
months after the last alleged act of sexual intimacy.
34. The FIR is conspicuously silent as to any
specific allegation that the appellant had either
forcibly taken or compelled respondent No. 2 to
accompany him to the hotel, nor does it disclose any
circumstance suggesting deceit or inducement on the
part of the appellant to procure her presence there.
Therefore, the only logical inference that emerges is
that respondent No. 2, of her own volition, visited and
met the appellant on each occasion. It is also borne
out from the record that whenever the appellant
brought up the subject of marriage, respondent No. 2
herself opposed the proposal. In such circumstances,
the contention of respondent No. 2 that the physical
relationship between the parties was premised upon
any assurance of marriage by the appellant is devoid
of merit and stands unsustainable.
35. We deem it appropriate to refer to the
decision of this Court in Rajnish Singh v. State of
Uttar Pradesh, (2025) 4 SCC 197, whereby it was
held that when a woman who willingly engages in a
long-term sexual relationship with a man, fully aware
of its nature and without any cogent evidence to show
that such relationship was induced by misconception
of fact or false promise of marriage made in bad faith
from the inception, the man cannot be held guilty of
rape under Section 376 of the IPC. The relevant
portion of the judgment is extracted as under:
“33. There is no dispute that from the
year 2006 onwards, the complainant and the
appellant were residing in different towns.
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The complainant is an educated woman and
there was no pressure whatsoever upon her
which could have prevented her from filing a
police complaint against the accused if she
felt that the sexual relations were under
duress or were being established under a
false assurance of marriage. On many
occasions, she even portrayed herself to be
the wife of the appellant thereby, dispelling
the allegation that the intention of the
appellant was to cheat her right from the
inception of the relationship.
34. We cannot remain oblivious to
the fact that it was mostly the complainant
who used to travel to meet the appellant at
his place of posting. Therefore, we are
convinced that the relationship between the
complainant and the appellant was
consensual without the existence of any
element of deceit or misconception.
35. Further, the application filed by
the complainant at One Stop Centre,
Lalitpur on 23-3-2022, makes it abundantly
clear that she was in a consensual
relationship with the appellant since 2006. It
is alleged in the complaint that when she
had proposed that they should marry and
live together, the appellant physically
abused her and beat her up. If at all there
was an iota of truth in this allegation then
the FIR should have been registered
immediately after this incident. However, it is
only when it came to the knowledge of the
complainant that the appellant was getting
married to another woman, in an attempt to
stop his marriage, she filed aforesaid
complaint at the One Stop Centre wherein
she also admitted that she was equally
guilty as the appellant and therefore, his
marriage must be stopped.
xxx
39. It is, therefore, clear that the
accused is not liable for the offence of rape
if the victim has wilfully agreed to maintain
sexual relations. The Court has also
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recognised that a prosecutrix can agree to
have sexual intercourse on account of her
love and passion for the accused.”
(underlining by us)
36. By the impugned order dated 06.03.2025,
the High Court observed that although it was
contended on behalf of the appellant that the
relationship between him and respondent No. 2 was
consensual in nature, no such categorical statement
was made by him in the memo of application and that
the plea of consent was merely inferred. In this
regard, reliance was placed by the High Court on the
case of Ganga Singh v. State of Madhya
Pradesh, (2013) 7 SCC 278 : (2013) 3 SCC (Civ)
505 : (2013) 3 SCC (Cri) 314, wherein this Court had
stated that unless there was a specific defence of a
consensual relationship, such a defence cannot be
inferred.
37. The said finding of the High Court,
however, fails to appreciate that a plain reading of
the FIR in question itself reveals that the
relationship between the parties was, in fact,
consensual, inasmuch as respondent No. 2 met
the appellant whenever he expressed a desire to
meet her. Furthermore, respondent No. 2, being a
major and an educated individual, voluntarily
associated with the appellant and entered into
physical intimacy on her own volition. It is also
pertinent to note that, at the relevant time, the
marriage of respondent No. 2 was subsisting. In
light of the foregoing circumstances, even upon a
bare reading of the material on record, it is
manifest that the relationship between the parties
was consensual, and therefore, the absence of an
express statement to that effect in the memo of
application, as emphasised in the impugned
order, cannot be held against the appellant when
the same can be otherwise clearly discerned.
38. At this stage, it is material to refer to the
decision of this Court in Mahesh Damu, wherein the
following observations were made:
“29. It must also be clear that for a
promise to be a false promise to amount to
misconception of fact within the meaning of
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Section 90IPC, it must have been made from the
very beginning with an intention to deceive the
woman to persuade her to have a physical
relationship. Therefore, if it is established that
such consent was given under a misconception
of fact, the said consent is vitiated and not a
valid consent. In this regard we may refer
to Deepak Gulati v. State of Haryana [Deepak
Gulati v. State of Haryana, (2013) 7 SCC
675 : (2013) 3 SCC (Cri) 660], in which it was
held as follows : (SCC pp. 682-84, paras 21 &
24)
“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 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.
xxx
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
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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.”
(underlining by us)”
(Emphasis supplied)
12.6. In BATLANKI KESHAV (KESAVA) KUMAR ANURAG
v. STATE OF TELANGANA – 2025 SCC OnLine SC 1258, the Apex
Court has held as follows:
“…. …. ….
25. In the chats which have been placed on
record along with the additional documents, the de-
facto complainant, who is referred to by the name
‘Muffin’, has admitted that she was manipulative and
was trying to “get a green card holder”. At one point
of time, she also stated that it would not be difficult for
her to trap the next one. In the very same breath, she
mentions that she would not waste time with the
accused appellant and needs to “invest on the next
victim”. She also mentions that she would irritate her
victims to the extent that they dump her, and she
could happily start with the next one. She also stated
that she was using the accused appellant.
26. These chats depict the stark reality
about the behavioral pattern of the de-
facto complainant who appears to be having
manipulative and vindictive tendency.
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27. Thus, in our opinion, the accused
appellant was absolutely justified in panicking and
backing out from the proposed marriage upon
coming to know of the aggressive sexual
behaviour and the obsessive nature of the de-
facto complainant.
28. Hence, even assuming that the
accused appellant retracted from his promise to
marry the complainant, it cannot be said that he
indulged in sexual intercourse with the de-
facto complainant under a false promise of
marriage or that the offence was committed by
him with the de-facto complainant on the ground
that she belonged to the Scheduled
Castes/Scheduled Tribes community.
29. It is also relevant to mention here that in
FIR No. 751 of 2021, the de-facto complainant has
not even made a whisper about the accused
appellant dumping her on the ground of her caste.
Thus, apparently this allegation which has been set
out in the subsequent FIR No. 103 of 2022 lodged
almost after seven months is nothing but a sheer
exaggeration which must be discarded.
30. Having considered the entirety of facts
and circumstances as available on record, we are
of the firm opinion that allowing prosecution of
the accused appellant to continue in the
impugned FIR No. 103 of 2022 would be nothing
short of a travesty of justice in addition to being a
gross abuse of the process of Court. The
impugned FIR No. 103 of 2022 is nothing but a
bundle of lies full of fabricated and malicious
unsubstantiated allegations levelled by the
complainant. The facts on record clearly establish
the vindictive and manipulative tendencies of the
complainant and these aspects have a great
bearing on the controversy.”
(Emphasis supplied)
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12.7. Again, in the case of AMOL BHAGWAN
NEHUL v. STATE OF MAHARASHTRA – 2025 SCC
OnLine SC 1230, the Apex Court has held as follows:
“…. …. ….
8. Having heard both sides in this case
and after carefully considering the material on
record, the following attributes come to the fore:
(a) Even if the allegations in the FIR
are taken as a true and correct depiction of
circumstances, it does not appear from the
record that the consent of the
Complainant/Respondent no. 2 was obtained
against her will and merely on an assurance to
marry. The Appellant and the
Complainant/Respondent no. 2 were acquainted
since 08.06.2022, and she herself admits that
they interacted frequently and fell in love. The
Complainant/Respondent no. 2 engaged in a
physical relationship alleging that the Appellant
had done so without her consent, however she
not only sustained her relationship for over 12
months, but continued to visit him in lodges on
two separate occasions. The narrative of the
Complainant/Respondent no. 2 does not
corroborate with her conduct.
(b) The consent of the
Complainant/Respondent no. 2 as defined
under section 90 IPC also cannot be said to
have been obtained under a misconception of
fact. There is no material to substantiate
“inducement or misrepresentation” on the
part of the Appellant to secure consent for
sexual relations without having any intention
of fulfilling said promise. Investigation has
also revealed that the Khulanama, was
executed on 29.12.2022 which the
Complainant/Respondent no. 2 had obtained
from her ex-husband. During this time, the
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parties were already in a relationship and the
alleged incident had already taken place. It is
inconceivable that the Complainant had
engaged in a physical relationship with the
Appellant, on the assurance of marriage,
while she was already married to someone
else. Even otherwise, such promise to begin
with was illegal and unenforceable qua the
Appellant.
(c) There is no evidence of coercion
or threat of injury to the
Complainant/Respondent no. 2, to attract an
offence under section 506 IPC. It is
improbable that there was any threat caused
to the Complainant/Respondent no. 2 by the
Appellant when all along the relationship was
cordial, and it was only when the Appellant
graduated and left for his hometown to
Ahmednagar, the Complainant/Respondent
no. 2 became agitated. We also cannot ignore
the conduct of the Complainant/Respondent
no. 2 in visiting the native village of the
Appellant without any intimation, which is
also unacceptable and reflects the agitated
and unnerved state of mind of the
Complainant/Respondent no. 2. For the same
reason, the criminal prosecution against the
Appellant herein is probably with an
underlying motive and disgruntled state of
mind.
(d) There is also no reasonable
possibility that the Complainant/Respondent
no. 2 or any woman being married before and
having a child of four years, would continue
to be deceived by the Appellant or maintain a
prolonged association or physical
relationship with an individual who has
sexually assaulted and exploited her.
9. In our considered view, this is also
not a case where there was a false promise to
marry to begin with. A consensual
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relationship turning sour or partners
becoming distant cannot be a ground for
invoking criminal machinery of the State.
Such conduct not only burdens the Courts,
but blots the identity of an individual accused
of such a heinous offence. This Court has
time and again warned against the misuse of
the provisions, and has termed it a folly to
treat each breach of promise to marry as a
false promise and prosecute a person for an
offence under section 376 IPC.”
(Emphasis supplied)
13.1. The Apex Court, in the case of Dr.
DHRUVARAM MURLIDHAR SONAR supra, draws with
unmistakable clarity, the doctrinal line that separates
rape from consensual intimacy, where two adults of
their own volition, engage in consensual sexual
relation over a sustained period, the subsequent
refusal of the man to marry the woman, howsoever
regrettable, does not, ipso facto, transmute such
intimacy into the offence of rape as punishable under
Section 376 of the IPC.
13.2. The principle is reaffirmed in SHAMBHU
KHARWAR supra where the Apex Court interdicted the
criminal process at the threshold holding that the
relationship between the parties was purely
consensual and accordingly quashed the crime as well
as the charge sheet.
13.3. Likewise, in NAIM AHAMED v. STATE (NCT
OF DELHI) [(2023) 15 SCC 385], the Apex Court
addressed an identical factual complexion, where the
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complainant had even become pregnant on account of
the relationship, and yet held that such circumstance,
by itself cannot clothe the relationship with criminality,
for pregnancy arising out of consensual intimacy.
13.4. In SAMADHAN supra the Apex Court
sounded a note of stern caution against the disquieting
tendency of coloring failed relationships, with the hue
of heinous crimes. The Apex Court holds that mere
breakdown of a relationship between the consenting
adults, cannot constitute rape nor can the criminal law
be set into motion as a retaliatory instrument, merely
because the relationship did not ultimately culminate
in marriage.
13.5. Further, in AMOL BHAGWAN NEHUL, the
Apex Court observes that where the complainant is
already married, the allegation of physical intimacy
induced by promise of marriage stands on infirm
grounds, for a promise which is ex-facie
unenforceable, cannot in those circumstances, be
elevated into a foundation of imputing criminality.
13.6. In BATLANKI KESHAV (KESAVA) KUMAR
ANURAG supra the Apex Court goes even further, on a
perusal of contemporaneous chats, it found that the
complainant had exhibited manipulative and vindictive
tendencies and held that man backing out of marriage,
even assuming such promise existed, cannot
automatically attract the offence of rape. Holding the
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prosecution to be malicious and fabricated, the Apex
Court obliterates the proceedings against the accused.
13.7. In the light of the overwhelming majority of
such decisions, the Apex Court has exercised its
Constitutional and inherent jurisdiction to arrest the
criminal process, even at the stage of registration of
the crime, where the allegation taken to their highest,
disclose nothing beyond a consensual relationship
subsequently turning sore.
APPLICABILITY OF THE LAW TO THE FACTS OF
THE CASE:
14. In the case at hand, the relationship
between the complainant and the petitioner, at its
inception, was plainly that of a client and a counsel.
Yet to determine whether the complaint is a bonafide
invocation of criminal law or an endeavour covered by
manipulation and vendetta, it becomes necessary to
notice certain antecedent facts, which emerge not from
conjecture, but from documents placed on record.
Manipulation and Malafides of the complainant:
A brief chronology bears mention:
14.2. The complainant is said to have married one
Yathish Kumar T. R. in the year 2014. The said marriage,
by an order dated 22-10-2016, was annulled. However in
the year 2020, it appears that a child was born to the
– 56 –
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complainant, the date of birth being 21-08-2020. The
birth certificate is placed on record. The birth certificate
depicts the date of birth of the child born to Yathish Kumar
T. R. and the complainant is as follows:
The birth certificate placed on record is not
without significance. It indicates two distinct and
telling circumstances; first, that notwithstanding the
annulment decree dated 22-10-2016 in M.C.No.3017 of
2015, a child is born on 21-08-2020 to the complainant
and the very same Yathish Kumar T. R. and second,
that the complainant appears to have continued
association with the said Yathish Kumar T. R. even
long after the severance of the marital tie. Photographs
are also produced to demonstrate that the child now about
– 57 –
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4 years of age, has been living with the complainant and
Yathish Kumar T. R., as a family.
The matter does not rest there:
14.3. The petitioner has also produced another birth
certificate evidencing the birth of a child on 15-12-2008
where the father’s name is shown as Nagaraju and the
mother, the complainant. The said birth certificate is as
follows:
The inevitable inference is that the complainant has
two children, the first born on 15-12-2008 from Nagaraju
and the second born on 21-08-2020 from Yathish Kumar T.
– 58 –
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R., long after the annulment of marriage dated 22-10-2016.
These circumstances do not float in isolation. They
connect with yet another material episode.
14.4. A crime comes to be registered on 28-11-2022
and on the basis of the said complainant a crime in Crime
No.602 of 2022 for offence punishable under Section 363
of the IPC is alleged. The gravamen of the complaint is
that the child born from their earlier relationship, went
missing on 25-11-2022. The child was about 13 years at
that point in time. In the complaint, the complainant
narrates that she is married and settled with another
person. The gist of the complaint is as follows:
“‚Wಾ+Tಯು ಾ ೆ ೆ oಾಜ(ಾK €ೕ=ದ ದೂ ನ
9ಾ(ಾಂಶ,ೇ#ೆಂದ(ೆ ‚Wಾ+Tಯು ಸು<ಾರು 4 ವಷ+ಗ ಂದ ಾ= ೆ
ಮ#ೆಯ / ಕುಟುಂಬ ಸMೕತ ,ಾಸ,ಾKದುIJೊಂಡು
ಗೃUeWಾKರುPಾ:(ೆ, ‚Wಾ+Tಯ ಮಗ ಹ•+• (ಾh-13ವಷ+
ಈತನು ಅಂಜ#ಾನಗರದ /ರುವ 34ೕ5#ಾಯಕ ಸೂAಲ% / 9#ೇ
ತರಗ?ಯ / ,ಾ 9ಾಂಗ <ಾಡು?:ರುPಾ:#ೆ. ‚Wಾ+Tಯ ಮಗ ಈ
UಂSೆ ಸು<ಾರು 2 ವಷ+ಗ ಂದ 4-5 ಾ ಮ#ೆ ‘ಟು oೋK
ೇ(ೆಯವರ ಮುEಾಂತರ ೕ <ಾ=O ,ಾಪಸು ಮ#ೆ ೆ
ಬಂTರುPಾ:#ೆ. T#ಾಂಕ:25/11/2022 ರಂದು (ಾ?4: 08-00 ಗಂwೆ ೆ
ಮ#ೆ’ಂದ oೊರಗ[ೆ oೋದವನು ,ಾಪಸು ಮ#ೆ ೆ ಬಂTರುವRT8ಾ/,
‚Wಾ+Tಯ 9ೆ%ೕUPೆ ಪke+ಮ ರವರು ಮಂಡ ದ / ,ಾಸ,ಾKದುI,
ಇವರ >ೊPೆ ‚Wಾ+Tಯ ಮಗ oೆಚುt ಒಡ#ಾಟ5ಟು Jೊಂ=ದುI,
ಪkeೕ+ಮ ರವರನು% ಕ(ೆO 5Xಾರ ೆ <ಾಡ ೇJೆಂದು JೋರುPೆ:ೕ#ೆ.
ನಂತರ ‚Wಾ+Tಯು ಸಂಬಂNಕರು ಮತು: 9ೆ%ೕUತರ ಬ 5Xಾರ
<ಾಡ8ಾK WಾವRSೇ ಉಪಯುಕ: <ಾU? Sೊ(ೆ?ರುವRT8ಾ/,
ಆದI ಂದ Jಾ ೆWಾKರುವ ಹ•+• (ಾh-13ವಷ+ ರವರನು% ಪPೆ:
<ಾ=Jೊಡ ೇJೆಂದು Jೊಟ ದೂರು ಇPಾ T..”
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14.5. Yet another record is placed before this Court;
the complainant filed Crl.Misc.No.1467 of 2023 invoking
Section 13(3) of the Karnataka Registration of Births and
Deaths Act, 1969 and in the cause title therein, in the year
2023, the complainant describes herself to be the wife of
Yathish Kumar. The cause title reads as follows:
“IN THE COURT OF THE CHIEF JUDICIAL MAGISTRATE,
BENGALURU RURAL DISTRICT, BENGALURUPresent:- Sri. SUNIL.R., B.COM., LL.B.,
CJM., Bengaluru Rural District,
Bengaluru.
Dated this the 20th day of January, 2024.
Crl. Misc. No. 1467/2023
PETITIONER: Smt. Nagarathna,
W/o. Sri. Yathish Kumar,
31 years, R/at No.458,
Muddinapalya Main Road,
Anjananahara, Bengaluru North,
Bengaluru-560 061.
(By Sri.B.L.Jayarama, Adv)
– V/S –
RESPONDENT: The Chief Registrar,
Births and Deaths,
Office of the Tahsildar,
Bengaluru South Taluk,
Bengaluru.
(Respondent placed exparte)
*************”
The prayer sought therein is follows:
– 60 –
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“The petitioner has filed the petition under
Section 13(3) of the Registration of Births and Deaths
Act, 1969 seeking direction of this Court to direct the
respondent to enter the date of death of Renukamma,
W/o Late Nagaraja, as 19.07.2011 in the death
register.”
When all these facts, borne out from official records,
are considered cumulatively, it becomes difficult to
comprehend, far less accept, how the complainant
could credibly assert that she consented to sexual
relationship on a “promise of marriage”, when she
appears to have been in a subsisting marital
relationship or at the very least, in a continuing
domestic association, and is also mother of 2 children,
one about 13 years old and the other about 4 years.
14.6. What is more disturbing is the disquieting
fashion in which the complainant has sought to implicate
other members of the family of the petitioner. They are
arraigned on a tenuous allegation that they did not
cooperate or support the petitioner’s marriage with the
complainant, thereby attempting to create a narrative of
cheating. Criminal law cannot be permitted to be
expanded by such facile insinuation.
15. The offences alleged included Section 69 of the
BNS. Section 69 of BNS reads as follows:
“69. Sexual intercourse by employing
deceitful means, etc.–Whoever, by deceitful means
or by making promise to marry to a woman without any
intention of fulfilling the same, has sexual intercourse
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with her, such sexual intercourse not amounting to the
offence of rape, shall be punished with imprisonment of
either description for a term which may extend to ten
years and shall also be liable to fine.
Explanation.–“deceitful means” shall include
inducement for, or false promise of employment or
promotion, or marrying by suppressing identity.”
Section 69 criminalizes sexual intercourse by
employing deceitful means including a promise of marriage,
without intention of fulfilment. The provision though newly
introduced, cannot be interpreted, in a manner that allows it
to become an instrument of retroactive criminalization of
consensual relationships upon the mere recital of
“promise”. The statute punishes deceit, not
disappointment; fraud, not failed affection; and
exploitation, not the collapse of relationship. On the
facts presented, it is difficult to discern where from the
offence under Section 69 could even spring. The
complainant on her own showing and on admitted
records, appears to have been married/associated in
other relationships, and to have children. In such
circumstances, the allegation of sexual intercourse,
induced solely on promise of marriage is inherently
implausible and legally unsustainable, consequently,
neither Section 96 BNS nor Section 64 BNS (Section
376 of the earlier regime, the IPC) can be attracted.
16. The offence under Section 89 of the BNS
(Section 313 of the earlier regime) is also not made out. In
view of the principle enunciated by the Apex Court in NAIM
AHAMED supra, consensual sexual acts, do not by
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themselves, invite such provision, in the absence of
essential legal ingredients.
17. What then remains is, Section 318(2) of the BNS
(Section 420 of the earlier regime, the IPC), even that
cannot be invoked merely because a relationship did
not culminate in marriage. The settle position of law is
that, breach of a marriage to marry, howsoever morally
questionable, is not per se cheating in the criminal
sense, unless dishonest intention at the inception is
established, which is conspicuously absent in the case
at hand.
18. The petitions are at the stage of registration of
crime. The question whether this Court should interfere at
the stage of registration of crime is no longer res integra.
The Apex Court in MAHMOOD ALI v. STATE OF UTTAR
PRADESH – 2023 SCC OnLine SC 950 has held as
follows:
“…. …. ….
10. The entire case put up by the first informant
on the face of it appears to be concocted and
fabricated. At this stage, we may refer to the
parameters laid down by this Court for quashing of an
FIR in State of Haryana v. Bhajan Lal [State of
Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992
SCC (Cri) 426 : AIR 1992 SC 604] . The parameters
are : (SCC pp. 378-79, para 102)
“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.
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(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) of the Code.
(3) Where the uncontroverted allegations
made in the FIR or complaint and the evidence
collected in support of the same do not disclose the
commission of any offence and make out a case
against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is permitted
by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR
or complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding against
the accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the Code or the
Act concerned (under which a criminal proceeding is
instituted) to the institution and continuance of the
proceedings and/or where there is a specific
provision in the Code or the Act concerned, providing
efficacious redress for the grievance of the aggrieved
party.
(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.”
We are of the view that the case of the present
appellants falls within Parameters 1, 5 and 7,
respectively, of Bhajan Lal [State of Haryana v. Bhajan
Lal, 1992 Supp (1) SCC 335: 1992 SCC (Cri) 426: AIR
1992 SC 604].
11. At this stage, we would like to observe
something important. Whenever an accused
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comes before the Court invoking either the
inherent powers under Section 482 of the Code of
Criminal Procedure (CrPC) or extraordinary
jurisdiction under Article 226 of the Constitution
to get the FIR or the criminal proceedings
quashed essentially on the ground that such
proceedings are manifestly frivolous or vexatious
or instituted with the ulterior motive for wreaking
vengeance, then in such circumstances the court
owes a duty to look into the FIR with care and a
little more closely.
12. We say so because once the
complainant decides to proceed against the
accused with an ulterior motive for wreaking
personal vengeance etc. then he would ensure
that the FIR/complaint is very well drafted with all
the necessary pleadings. The complainant would
ensure that the averments made in the
FIR/complaint are such that they disclose the
necessary ingredients to constitute the alleged
offence. Therefore, it will not be just enough for
the Court to look into the averments made in the
FIR/complaint alone for the purpose of
ascertaining whether the necessary ingredients to
constitute the alleged offence are disclosed or
not.
13. In frivolous or vexatious proceedings,
the Court owes a duty to look into many other
attending circumstances emerging from the
record of the case over and above the averments
and, if need be, with due care and circumspection
try to read in between the lines. The Court while
exercising its jurisdiction under Section 482CrPC
or Article 226 of the Constitution need not restrict
itself only to the stage of a case but is
empowered to take into account the overall
circumstances leading to the
initiation/registration of the case as well as the
materials collected in the course of investigation.
Take for instance the case on hand. Multiple FIRs
have been registered over a period of time. It is in
the background of such circumstances the
registration of multiple FIRs assumes importance,
thereby attracting the issue of wreaking
vengeance out of private or personal grudge as
alleged.
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14. State of A.P. v. Golconda Linga
Swamy [State of A.P. v. Golconda Linga Swamy,
(2004) 6 SCC 522: 2004 SCC (Cri) 1805], a two-
Judge Bench of this Court elaborated on the types of
materials the High Court can assess to quash an FIR.
The Court drew a fine distinction between
consideration of materials that were tendered as
evidence and appreciation of such evidence. Only
such material that manifestly fails to prove the
accusation in the FIR can be considered for quashing
an FIR. The Court held : (Golconda Linga Swamy
case [State of A.P. v. Golconda Linga Swamy, (2004)
6 SCC 522 : 2004 SCC (Cri) 1805] , SCC p. 527,
paras 5-7)
“5. … Authority of the court exists for
advancement of justice and if any attempt is made
to abuse that authority so as to produce injustice,
the court has power to prevent such abuse. It
would be an abuse of the process of the court to
allow any action which would result in injustice and
prevent promotion of justice. In exercise of the
powers court would be justified to quash any
proceeding if it finds that initiation or continuance
of it amounts to abuse of the process of court or
quashing of these proceedings would otherwise
serve the ends of justice. When no offence is
disclosed by the complaint, the court may examine
the question of fact. When a complaint is sought to
be quashed, it is permissible to look into the
materials to assess what the complainant has
alleged and whether any offence is made out even
if the allegations are accepted in toto.
6. In R.P. Kapur v. State of Punjab [R.P.
Kapur v. State of Punjab, 1960 SCC OnLine SC 21
: AIR 1960 SC 866] , this Court summarised some
categories of cases where inherent power can and
should be exercised to quash the proceedings :
(SCC OnLine SC para 6)
(i) where it manifestly appears that there is
a legal bar against the institution or continuance
e.g. want of sanction;
(ii) where the allegations in the first
information report or complaint taken at its face
value and accepted in their entirety do not
constitute the offence alleged;
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(iii) where the allegations constitute an
offence, but there is no legal evidence adduced or
the evidence adduced clearly or manifestly fails to
prove the charge.
7. In dealing with the last category, it is
important to bear in mind the distinction
between a case where there is no legal
evidence or where there is evidence which is
clearly inconsistent with the accusations made,
and a case where there is legal evidence which,
on appreciation, may or may not support the
accusations. When exercising jurisdiction
under Section 482 of the Code, the High Court
would not ordinarily embark upon an enquiry
whether the evidence in question is reliable or
not or whether on a reasonable appreciation of
it accusation would not be sustained. That is
the function of the trial Judge. Judicial
process, no doubt should not be an instrument
of oppression, or, needless harassment. Court
should be circumspect and judicious in
exercising discretion and should take all
relevant facts and circumstances into
consideration before issuing process, lest it
would be an instrument in the hands of a
private complainant to unleash vendetta to
harass any person needlessly. At the same
time the section is not an instrument handed
over to an accused to short-circuit a
prosecution and bring about its sudden death.”
(emphasis supplied)”
(Emphasis supplied)
The Apex Court reiterates with crystalline clarity that where
the proceedings are manifestly frivolous, vexatious,
inherently improbable or maliciously instituted to wreak
vengeance, the High Court should not hold itself looking
into artful drafting of the complaint, but should travel to
consider the antecedent circumstances that led to
registration of the crime, and obliterate the same if it finds
any of the aforesaid factors.
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19. Applying the aforesaid principles to the case at
hand, the documents and events noticed hereinabove
unmistakably disclose, that the complaint is not a genuine
criminal grievance, but bears a strong imprint of
manipulation and of an attempt to convert private
discord into public prosecution. This, therefore, is a fit
case where even proceedings for malicious
prosecution may be warranted. However, this Court for
reasons best left unstated, restrains itself and holds its
hands from issuing such direction. Wherefore, this Court
cannot permit the criminal process to be employed as an
engine of harassment or a weapon of retaliation and
become an abuse of the process of the law, eventually
resulting in miscarriage of justice.
20. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petitions are allowed.
(ii) FIR in Crime No.789 of 2024
registered at Byadarahalli Police
Station and pending before the Chief
Judicial Magistrate, Bengaluru Rural
District, Bengaluru stands quashed.”
7. As can be seen from the principles laid down in the
aforesaid judgment, a mere promise to having sexual intercourse
on the false promise of marriage by itself in the absence of any
other material cannot be construed or treated as commission of
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offences punishable either under Sections 376(2)(n) and 420 of the
Indian Penal Code.
8. Under these circumstances, I am of the considered
opinion that the continuation of the impugned proceedings would
amount to abuse of process of law warranting interference by this
Court in the present petition. In the result, I pass the following:
ORDER
i) The petition is hereby allowed.
ii) The impugned proceedings in C.C.No.6302/2023 on
the file of the Additional Civil Judge and JMFC-II, Hassan, for the
offences punishable under Sections 376(2)(n) and 420 of IPC are
hereby quashed.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
MDS
List No.: 2 Sl No.: 1
