The judgment establishes the distinction between rape and consensual acts, emphasizing the active and reasoned deliberation required for consent under IPC Section 375, and the consequences of a deceitful promise of marriage.

ORDER :

1. The petitioner is before this Court calling in question proceedings in Crime No. 32/2023 registered for the offences punishable under Sections 376, 506, 417 and 420 of the IPC, now pending before the II Additional Civil Judge and JMFC Court, Gadag.

2. Facts in brief, germane are as follows:

The second respondent is the complainant and the petitioner is the sole accused. The petitioner and the complainant claim to have been in love since 2018 and have had physical relationship as well. It transpires that the complainant was married to one Ramakrishna Kadligondi on 29-06-2021, at the time when the petitioner and the complainant were still in relationship. The marriage between the complainant and Ramakrishna Kadligondi appears to have floundered. The floundering of the relationship leads the complainant walking out of the matrimonial house and staying back with her parents. It is at that time, the petitioner is again alleged to have lured the complainant in continuing the relationship that they had earlier. It is alleged that, on the promise that in the event the complainant would come out of the marriage, he would get married to the complainant and again had physical relationship with the complainant. The complainant then comes to know that she is pregnant for the child, the consequence of the physical relationship of the petitioner and the complainant and further comes to know that the petitioner is wanting to get married to someone else. It is then, the complainant registers the complaint which becomes a crime in Crime No. 32/2023, for the afore-quoted offences. Registration of the crime is what has driven the petitioner to this Court in the subject petition.

3. This Court on a prima facie ground that they were consensual acts between the petitioner and the complainant, grants an interim order of stay on 10.08.2023. The interim order is in operation even today.

4. Heard Sri K.L. Patil, learned counsel for the petitioner, Sri V.S. Kalasurmath, learned High Court Government Pleader for respondent No. 1 and Smt. Archana A. Magadum, learned counsel for respondent No. 2.

5. Learned counsel appearing for the petitioner, Sri K.N. Patil would vehemently contend that consensual acts between the petitioner and the complainant cannot be termed to be a ‘rape’ as the complainant on her own volition wanted a relationship with the petitioner on account of strained relationship between the complainant and her husband. He would further submit that the issue in the lis stands covered by plethora of judgments rendered by the Apex Court and that of this Court, with particular reference to the order passed by this Court in Crl. Pet. No. 4761/2022, disposed on 28.02.2023.

6. Smt. Archana A. Magadum, learned counsel appearing for respondent No. 2- complainant would vehemently refute the submissions of the learned counsel for the petitioner contending that when they were in love and the complainant got married to one Ramakrishna Kadligondi, the petitioner had threatened the complainant that he would reveal their relationship to the family of her husband and also he would take away her life. Due to strained relationship between the complainant and her husband, the complainant came out of the relationship and again on the promise of marriage, the petitioner has had physical relationship with the complainant. The complainant becomes pregnant for the child born and when this was brought to the notice of the petitioner, he not only denied everything but goes on to get married to another woman. She would further submit that the consent of the complainant is taken out of deceit and therefore, the offences are appropriately laid. She would also seek summoning of the DNA report.

7. Learned High Court Government Pleader appearing for respondent No. 1 -State would also toe the lines of the learned counsel representing the second respondent; has placed on record the charge sheet material and the report of the DNA and would submit that it is a matter of trial