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(ii) That even if the contents of the impugned FIR are read in its entirety and all the contents are accepted to be true, then also no offence under section 376 IPC is made out against the petitioner. It is contended that the petitioner and the respondent No.2 both are adult and by their own free will they entered into intimate relations with each other, hence, consensual relation does not fall within the definition of 'rape' as given in section 375 IPC. It is further argued that the impugned FIR does not contain any allegation to the effect that the respondent No.2 was forced to get intimate with the petitioner or does not contain any allegation that the petitioner has no intention to marry the respondent No.2 since beginning. In such circumstances, it cannot be held that the petitioner made physical relation with respondent No.2 by giving her false promise to marry. Learned counsel for the petitioner has further argued that making physical relation on promise to marry does not constitute any offence punishable under section 376 IPC when there is no material to suggest that a boy, who made physical relation with a girl, with promise to marry, has no intention of not marrying her since beginning. In support of above arguments, learned counsel for the petitioner has placed reliance on decisions of Hon'ble Supreme Court in Uday vs. State of Karnataka, 2003 CRI.L.J.1539; Pradeep Kumar Verma vs. State of Bihar & Anr., AIR 2007 SC 3059; Prashat Bharti vs. State of NCT of Delhi, 2013 CRI.L.J. 3839; Deepak Gulati vs. State of (9 of 37) [CRLMP-1106/2016] Haryana, 2013 CRI.L.J. 2990 and of this Court in Farook Ahmed (DR.) vs. State of Rajasthan & Anr., 2013(3) Cr.L.R. (Raj.) 1273.

15. At this stage, it will be useful to make a reference of the definition of rape as defined in section 375 IPC as it stood prior to coming into force of Criminal Law (Amendmend) Act, 2013 and thereafter section 375 IPC as it stood prior to coming into force of Act of 2013.

"375. Rape.-- A man is said to commit "rape"

who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

V. Even after leaving the hostel of Kurukshetra University, she agreed and proceeded to go with the appellant to Ambala, to get married to him there.

15. Section 114-A of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Act 1872') provides, that if the prosecutrix deposes that she did not give her consent, then the Court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the Act 1872 be pressed into service. Hence, the sole question involved herein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 417,375 and 376, IPC have to be taken into consideration, along with the provisions of Section 90 of the Act 1872. Section 90 of the Act, 1872 provides, that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375, IPC are concerned, and thus, such a physical relationship would tantamount to committing rape.

(35 of 37) [CRLMP-1106/2016]

18. The continuance of the consensual relationship for more than nine years and a son being born out of the same reflect that no offence like the one under Section 376 IPC could have been constituted. It is apparent that the complainant herself was maintaining the relationship with the present petitioner. The ingredients of Section 375 IPC, which defines the term 'Rape' reads as under:-