Madhya Pradesh High Court
Rajendra Aporiya vs The State Of Madhya Pradesh on 10 February, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:3206
1 WP. No. 33661 of 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 10th OF FEBRUARY, 2025
WRIT PETITION No. 33661 of 2024
RAJENDRA APORIYA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Yash Sharma - Advocate for petitioner.
Shri Shailendra Singh Kushwaha - Government Advocate for respondents No.1
to 3/State.
Shri Nikhil Rai- Advocate for respondent No.4.
ORDER
This petition, under Article 226 of Constitution of India, has been filed seeking following relief(s):
(i) That, the FIR bearing Crime no. 0008/2024 registered at Police Station Mahila Thana, Morena under Sections 376(2)(n), 323, 506 of IPC (Annexure P/1), along with the charge sheet may kindly be quashed in the interest of justice.
(ii) That, other pending proceeding arising out of the FIR (Annexure P/1) may also kindly quashed in the interest of justice.
(iii) That, other relief which is just and proper in the facts and Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 2/18/2025 6:53:58 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:3206 2 WP. No. 33661 of 2024 circumstances of the case may also be granted.
2. It is submitted by counsel for petitioner that respondent No.4 lodged a report on the allegation that she got married to Dharamveer S/o Natthilal Jatav on 25.04.2012 and was blessed with two children. Since she was being harassed by her husband, therefore, petitioner who is younger brother-in-law (Devar) of respondent No.4 took her side and persuaded that since she is being harassed by her husband, therefore, he would keep her with him. When she refused to do so, then he persuaded that she should believe him and he would keep her properly and would also perform marriage. One day, petitioner came to her house and committed rape by gagging her mouth. Thereafter, he started having physical relations with her continuously. As a result, she became pregnant and gave birth to a girl child on 28.06.2022. Thereafter, when she pressurized him to marry her, then he refused to do so and started assaulting her and also extended a threat to her life. Thus, it was claimed that petitioner has made her life miserable and also expressed that she has threat to her life because petitioner has got job in police department. It is also mentioned in the FIR that respondent No.4 is also ready to undergo DNA test. On the basis of this FIR, Crime No.8/2024 was registered at Police Station Mahila Thana Morena for offences under Sections 376(2)(n), 323, 506 IPC.
3. Challenging the FIR, it is submitted by counsel for petitioner that even if the entire allegations are accepted on their face value, still it would appear that prosecutrix was a consenting party. Even assuming that consent of prosecutrix was obtained by misrepresenting that petitioner would marry her, still the provision of Section 90 IPC would not apply because it is not the case of respondent No.4 that she had obtained divorce from her first husband. It is submitted that during the subsistence of first marriage since second marriage is not possible, therefore, even otherwise respondent No.4 was aware of the fact that Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 2/18/2025 6:53:58 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:3206 3 WP. No. 33661 of 2024 her marriage with petitioner is not possible and if even she continued with her relationship, then it cannot be said that her consent was obtained by misconception of fact. It is further submitted that statement of prosecutrix was recorded under Section 164 of Cr.P.C. and in that statement she has specifically stated that she had signed an application against the petitioner at the instance of her husband Dharamvir and the said application was sent by Dharamveer through post to Indore. About 4-5 months back, she received telephonic call from Mahia Thana. She informed the concerning investigating officer that the contents of the complaint are not correct and also expressed that she does not want any action on the same. On 17.05.2024, investigating officer came to her house and accordingly she went to the police station. She had also requested the investigating officer that she wishes to withdraw her application but investigating officer refused to do so. Videography was done and under the pressure of investigating officer she narrated whatever was mentioned in the application and under the pressure of investigating officer she had signed the papers.
4. Per contra, petition is vehemently opposed by counsel for the State as well as counsel for respondent No.4.
5. It is submitted by counsel for respondent No.4 that since petitioner had developed physical relationship with respondent No.4 by making a false representation that he would marry her, thus it is clear that the offence of rape was committed by petitioner. It is further submitted that DNA test was conducted and it was found that biological mother of the girl is the complainant whereas biological father of the girl is petitioner. Thus, physical relationship of petitioner with respondent No.4 is scientifically established also.
6. Heard learned counsel for the parties.
7. As per the DNA report, petitioner is biological father of baby girl child and respondent No.4 is the biological mother of baby girl child. Therefore, it is clear Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 2/18/2025 6:53:58 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:3206 4 WP. No. 33661 of 2024 that petitioner as well as respondent No.4 had physical relationship, out of which respondent No.4 gave birth to a baby girl child.
8. Now, the question for consideration is as to whether petitioner can be said to have committed rape on respondent No.4 or not?
9. Section 375 of IPC reads as under:-
375. Rape.--
A man is said to commit "rape" if he--
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:--
(First.)-- Against her will.
(Secondly.) -- Without her consent.
(Thirdly.) -- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
(Fourthly.) -- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. (Fifthly.) -- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 2/18/2025 6:53:58 AM
NEUTRAL CITATION NO. 2025:MPHC-GWL:3206 5 WP. No. 33661 of 2024 (Sixthly.) -- With or without her consent, when she is under eighteen years of age.
(Seventhly.) -- When she is unable to communicate consent. Explanation 1.-- For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2.-- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1.-- A medical procedure or intervention shall not constitute rape.
Exception 2.-- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
10. Section 90 of IPC reads as under:-
90. Consent known to be given under fear or misconception.--
A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.-- if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.-- unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
11. From plain reading of Section 375 of IPC, it is clear that if the acts mentioned in the aforesaid Section are committed against the will of prosecutrix;
Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 2/18/2025 6:53:58 AMNEUTRAL CITATION NO. 2025:MPHC-GWL:3206 6 WP. No. 33661 of 2024 or without her consent; or with her consent when her consent was obtained by putting her or any person in whom she is interested in fear of death or of hurt; or with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married; or with her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent; or with or without her consent, when she is under eighteen years of age; and when she is unable to communicate consent, then it would be rape.
12. From plain reading of allegations made in the FIR, it is clear that circumstances "thirdly, fourthly, fifthly, sixthly and seventhly" as mentioned in Section 375 of IPC would not apply. Similarly, the circumstance "first" would also not apply because although allegation against petitioner is that for the first time she was raped against her consent but thereafter they had physical relationship on continuous basis over a span of time which also resulted in birth of a baby girl child.
13. Now, the only question for consideration is as to whether the physical relationship was developed with respondent No.4 without her consent or not?
14. Section 90 of IPC provides that a consent is not a consent if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception. It is not the case of respondent No.4 that any threat to her life or limb was ever extended by petitioner before having physical relationship with her. Her allegation is that only when she insisted the petitioner to marry her, then not only he refused to marry her but also Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 2/18/2025 6:53:58 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:3206 7 WP. No. 33661 of 2024 extended threat to her life.
15. Now, the only question for consideration is as to whether Section 90 of IPC would apply to the facts and circumstances or not?
16. Undisputedly, respondent No.4 is a married woman and her divorce has not taken place with her husband who is the real brother of petitioner.
17. The Supreme Court in the case of Naim Ahamed Vs. State (NCT of Delhi) reported in 2023 SCC OnLine SC 89 has held as under:-
9. For the better appreciation of the submissions made by the learned counsels for the parties, the relevant provisions contained in Section 90 and Section 375 of IPC, are reproduced below:--
"90. Consent known to be given under fear or misconception.--A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.--if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.-- unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
375. Rape.- A man is said to commit "rape" if he-
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 2/18/2025 6:53:58 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:3206 8 WP. No. 33661 of 2024
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:--
First- Against her will.
Secondly- Without her consent.
Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly- With or without her consent, when she is under eighteen years of age.
Seventhly- when she is unable to communicate consent.
Explanation 1- For the purposes of this section, "vagina" shall also include labia majora. Explanation 2.- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1. A medical procedure or intervention shall not constitute rape.
Exception 2.- Sexual intercourse or sexual acts by a man with Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 2/18/2025 6:53:58 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:3206 9 WP. No. 33661 of 2024 his own wife, the wife not being under fifteen years of age, is not rape."
10. It would be germane to note that the basic principles of criminal jurisprudence warrant that the prosecution has to prove the guilt of the accused beyond reasonable doubt by leading cogent evidence, however, considering the ethos and culture of the Indian Society, and considering the rising graph of the commission of the social crime -
'Rape', the courts have been permitted to raise a legal presumption as contained in Section 114A of the Indian Evidence Act. As per Section 114A, a presumption could be raised as to the absence of consent in certain cases pertaining to Rape. As per the said provision, if sexual intercourse by the accused is proved and the question arises as to whether it was without the consent of the woman alleged to have been raped, and if she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.
11. It cannot be gainsaid that a consent given by a person would not be a consent as intended by any Section of the Penal Code, 1860, if such consent was given by the person under the fear of injury, or under a misconception of fact as contemplated in Section 90 IPC. Further, Section 375 also describes certain acts which if committed by the accused under the circumstances mentioned therein, as the commission of 'Rape', even though committed with the consent of the prosecutrix. In our opinion, the expression "misconception of fact"
contained in Section 90 IPC is also required to be appreciated in the light of the Clauses - contained in Section 375 IPC, more particularly the Clauses - Thirdly, Fourthly and Fifthly thereof, when the accused is charged for the offence of 'rape'. The circumstances described in the said three Clauses are wider than the expression "misconception of fact", as contemplated in Section 90 of IPC. Section 375 describes seven circumstances under which the 'rape' could be said to have been committed. As per the Clause - Thirdly, a rape could be said to have been committed, even with her consent, when the consent of the prosecutrix is obtained by putting her or any person in whom she is interested in fear of death or of hurt. As per the Clause - Fourthly, with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married; and as per the Clause - Fifthly, with her consent when at the time of giving the consent, the prosecutrix by reason of unsoundness of mind or Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 2/18/2025 6:53:58 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:3206 10 WP. No. 33661 of 2024 intoxication or the administration of stupefying or unwholesome substance by the accused or through another, she is unable to understand the nature and consequences of that to which she gives consent. Thus, apart from the prosecutrix being under the misconception of fact as contemplated in Section 90, her consent would be treated as 'no consent' if she had given her consent under any of the circumstances mentioned in Section 375 of IPC.
12. The exposition of law in this regard is discernible in various decisions of this Court, however the application of such law or of such decisions would depend upon the proved facts in each case, known as legal evidence. The ratio laid down in the judgments or the law declared by this Court do provide the guidelines to the judicial mind of the courts to decide the cases on hand, but the courts while applying the law also have to consider the evidence before them and the surrounding circumstances under which the alleged offences are committed by the accused.
x x x
19. After duly examining the record in the light of the submissions made by the learned counsels for the parties, following facts have emerged:--
(i) Prosecutrix was a married woman having three children.
(ii) Accused was staying in a tenanted premises situated in front of the house of the prosecutrix.
(iii) Though initially hesitant, the prosecutrix developed liking for the accused, and both started having sexual relationship with each other.
(iv) The prosecutrix delivered a male child on 28/10/2011 from the loin of the accused.
(v) The prosecutrix went to the native place of the accused in 2012 and came to know that he was a married man having children.
(vi) The prosecutrix still continued to live with the accused in Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 2/18/2025 6:53:58 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:3206 11 WP. No. 33661 of 2024 separate premises.
(vii) The prosecutrix and her husband took divorce by mutual consent in 2014 and thereafter prosecutrix permanently left her three children with her husband.
(viii) The prosecutrix lodged the complaint on 21st March, 2015 alleging that she had consented for sexual relationship with the accused as the accused had promised her to marry and subsequently did not marry.
20. The bone of contention raised on behalf of the respondents is that the prosecutrix had given her consent for sexual relationship under the misconception of fact, as the accused had given a false promise to marry her and subsequently he did not marry, and therefore such consent was no consent in the eye of law and the case fell under the Clause - Secondly of Section 375 IPC. In this regard, it is pertinent to note that there is a difference between giving a false promise and committing breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or 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 fulfill his promise. So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376. As stated earlier, each case would depend upon its proved facts before the court.
21. 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 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 Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 2/18/2025 6:53:58 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:3206 12 WP. No. 33661 of 2024 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 matured 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 313 of Cr. P.C. had stated that she had filed the complaint as he refused to fulfill 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 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 375 of IPC.
22. In that view of the matter, the accused deserves to be acquitted from the charges levelled against him. Of course, the direction for payment of compensation given by the courts below shall remain unchanged as the appellant had accepted the responsibility of the child, and has also paid the amount of compensation to the prosecutrix.
18. The Supreme Court in the case of Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra and others reported in (2019) 18 SCC 191 has held as Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 2/18/2025 6:53:58 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:3206 13 WP. No. 33661 of 2024 under:-
23. Thus, there is a clear distinction between rape and consensual sex.
The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC.
19. The Supreme Court in the case of XXX Appellant Vs. State of Madhya Pradesh and another reported in 2024 SCC OnLine SC 241 has held as under:-
11. 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 Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 2/18/2025 6:53:58 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:3206 14 WP. No. 33661 of 2024 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.
12. Similar issue was considered by this Court in Naim Ahamed case [Naim Ahamed v. State (NCT of Delhi), (2023) 15 SCC 385 : 2023 SCC OnLine SC 89] on almost identical facts where the prosecutrix herself was already a married woman having three children. The complaint of alleged rape on false promise of marriage was made five years after they had started having relations. She even got pregnant from the loins of the accused. Therein she got divorce from her existing marriage much after the relations between the parties started.
This Court found that there cannot be any stretch of imagination that the prosecutrix had given her consent for sexual relationship under misconception. The accused was not held to be guilty. Relevant para 22 thereof is extracted below:
"21. 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 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 matured 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 Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 2/18/2025 6:53:58 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:3206 15 WP. No. 33661 of 2024 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 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."
13. The aforesaid arguments squarely cover the legal issue raised by the appellant.
14. For the reasons mentioned above, the impugned order [Vinod Gupta v. State of M.P., 2022 SCC OnLine MP 1837] passed by the High Court is set aside. FIR No. 52 dated 11-12-2020, registered under Sections 376(2)(n) and 506IPC at Police Station Mahila Thana, District Satna (M.P.) and all subsequent proceedings thereto are quashed.
20. This Court, by order dated dated 07.10.2023, passed in W.P. No.18064 of 2022 (Nishant Jain Vs. State of Madhya Pradesh and another) has held as under:-
13. Considering the aforesaid, this Court has no hesitation to quash the proceedings when Court comes to the conclusion that a person is being harassed by implicating him in a case of false promise of marriage because for the complainant/prosecutrix, it is very easy to say when a male comes in her connection and relationship developed between them and that culminated into physical relation only because he has promised to get married to her.Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 2/18/2025 6:53:58 AM
NEUTRAL CITATION NO. 2025:MPHC-GWL:3206 16 WP. No. 33661 of 2024
14. In the present case, as per the existing facts, promise was made by the petitioner as per the statement of the complainant/respondent No.2 and he failed to fulfill that promise, both the complainant and the petitioner got married to somewhere else, but a complaint was made by the complainant. Even after marriage, both were in physical relationship. The complainant was already married, despite that she was accepting the assurance of marriage from the petitioner and was continued with him in physical relationship. As narrated by the complainant, she came into contact with the petitioner only in the year 2015, whereas as per the statement and material produced, they were knowing each other much prior to year 2015. In a suit filed by the complainant, she has not only claimed permanent injunction, but also claimed decree that the petitioner be directed to clear the installments and execute the sale-deed of the house in the name of complainant, it shows that the complainant was after the property of the petitioner. The background of the complainant is also not clean. She was facing a criminal case of fraud in which her husband is convicted.
15. The Supreme Court in number of cases has observed that on the basis of promise of marriage if prosecutrix remained in relationship with the same person for long and not raising any objection, the same would not amount to commission of rape. The Supreme Court in a case reported in 2023 SCC OnLine SC 89 [Naim Ahamed Vs. State (NCT of Delhi)], has observed as under:-
"20. The bone of contention raised on behalf of the respondents is that the prosecutrix had given her consent for sexual relationship under the misconception of fact, as the accused had given a false promise to marry her and subsequently he did not marry, and therefore such consent was no consent in the eye of law and the case fell under the Clause - Secondly of Section 375 IPC. In this regard, it is pertinent to note that there is a difference between giving a false promise and committing breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceited the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 2/18/2025 6:53:58 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:3206 17 WP. No. 33661 of 2024 him or the circumstances beyond his control, which prevented him to fulfill his promise. So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376. As stated earlier, each case would depend upon its proved facts before the court."
16. Further, in case of Dr. Dhruvram Murlidhar Sonar Vs. State of Maharashtra and others reported in (2019) 18 SCC 191, the Supreme Court has observed as under:-
"23. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC."
17. Thus, I am of the opinion that under the existing facts and circumstances of case, in view of the law laid down by the Supreme Court in the abovecited cases, such prosecution which is apparently malicious, cannot permitted to be continued. As such, the FIR registered vide Crime No.263/2022 is quashed. The proceedings of sessions trial initiated in pursuance to the charge sheet No.264/22 are also quashed.
21. Respondent No.4 was well aware of the fact that during subsistence of her first marriage, her second marriage is not possible and in spite of that if she Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 2/18/2025 6:53:58 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:3206 18 WP. No. 33661 of 2024 continued with the physical relationship with petitioner, then it cannot be said that such physical relationship was on account of false promise of marriage. Not only the physical relationship continued but it also resulted in birth of a baby girl child. From the FIR, it is clear that on the date of lodging of FIR, the baby girl child was more than 1-1/2 years old because baby girl child was born on 28.06.2022 and the written complaint to the Commissioner of Police was given on 21.09.2023. Thus, it is clear that police complaint was made for the first time after one year and three months of the birth of baby girl child.
22. Under these circumstances when respondent No.4 was aware that her second marriage during subsistence of first marriage is not possible and she continued her physical relationship without any resistance, then it cannot be said that her consent was obtained by misconception of fact.
23. Accordingly, FIR in Crime No. 0008/2024 registered at Police Station Mahila Thana Morena (M.P.) for offence punishable under Sections 376(2)(n), 323, 506 of IPC is hereby quashed. As a consequence thereof, the charge-sheet filed against petitioner and the criminal proceedings pending against him also stand quashed.
24. Petition succeeds and is hereby allowed.
(G.S. Ahluwalia) Judge pd Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 2/18/2025 6:53:58 AM