Indian Kanoon - Search engine for Indian Law

7. Heard Ms. Geeta Luthra, Sr. Advocate duly assisted by Mr. V.N. Jha and Ms. Naina Dubey, Advocates for the petitioners, Sh. Rajesh Mahajan, Addl. Standing Counsel for State and counsel for complainant and also perused the written submissions filed by them.

8. In the written submissions filed by learned counsel for the petitioner, quashing of FIR is sought inter alia on the following grounds:-

(i) On the basis of statement / complaint of the complainant an FIR No.19/2013 dated 17.01.2013 was registered with the Police Station, New Ashok Nagar under Section 376 IPC. On 22.01.2013 statement under Section 164 Cr.PC of the prosecutrix was recorded in which she repeated the same version of FIR except some improvements to the effect that the petitioner at times indulged into sexual intercourse by giving her narcotics and that he took her objectionable photos and that she had visiting terms with her husband and children at Chandigarh.

(iii) During this period, they had physical relationship.

(iv) The petitioner stopped giving household expenses for the last two months.

(v) During this period she was harassed mentally and physically by the petitioner.

15. A bare perusal of these averments made in the FIR reflects that the marriage of the complainant was subsisting when she started living with the petitioner and having physical relation with him. She was not married to the petitioner but as per the allegations she was kept "as his wife". There was physical relation between the two. Physical relationship was consensual. The FIR was lodged because the petitioner had stopped giving household expenses. Keeping in view the fact that both, the complainant and the petitioner were major and there is no allegation that the physical relation was induced by any extraneous consideration, the allegations per se do not attract the provisions of Section 376 IPC. However, when statement of the complainant was recorded u/s 164 Cr.P.C. at that time she took the plea that her objectionable photographs were taken by the petitioner by applying narcotic on her and that the petitioner told her that they will get married soon but he was now backing out from his promise of marriage, as such she wanted legal action against him.

26. In view of the same, even if it is assumed that the petitioner actually had physical relationship with the complainant, the same would necessarily have to be consensual The discussion made above clearly negates an assurance of marriage. A consensual relationship without any assurance obviously will not substantiate the offence u/s 376 of the Penal Code.

27. The plea of the complainant that the petitioner had put vermilion on her forehead and tied mangalsutra and they started living as husband and wife again does not bring the case within the four corners of Section 376 IPC, inasmuch as, the complainant was aware that she was not married to the petitioner and as per her own allegations, she was married to Mukesh Jassal which marriage was subsisting at that time. She had developed intimacy and she and petitioner with consent of each other were having sexual relationship.

28. In Harish Kumar vs. State, Crl. M.C. 3877/2009 also substantially similar facts were involved and the FIR u/s 376/593 IPC was registered which was quashed by this Court by observing that the relationship between the two was consensual and marriage has not yet taken place. Therefore, no case u/s 376 or 493 IPC is made out.

29. In Deelip Singh (supra), it was held that consent given by a woman believing the man‟s promise to marry her would fall within the expression "without her consent" only if it is established that from the very inception, the man never really intended to marry her and the promise was a mere hoax. Since it is a case of obvious consent of the prosecutrix, who was aware that no marriage had taken place, no case u/s 376 IPC is made out. Zindar Ali (supra) cited by the State is not applicable to the facts of the case in as much as in that case, the first act of sexual intercourse by the accused was without consent and thereby he committed rape upon the prosecutrix.