IMPORTANT POINT
Consent in sexual relationships is vitiated by a false promise to marry, establishing grounds for prosecuting alleged offenses.

JUDGMENT :

Neela Gokhale, J.

1. Rule. Rule made returnable forthwith. With consent of the parties, the petition is taken up for final hearing.

2. Petitioner seeks quashing and setting aside criminal proceedings bearing Sessions Case No. 692 of 2023 pending before the Additional Sessions Judge, Mumbai arising out of FIR No. 789 of 2022 dated 5th August 2022 registered with the Bhoiwada Police Station, Mumbai for the offences punishable under Sections 376, 376(2)(n), 376(2)(h), 313, 323, 504, 506 of the Indian Penal Code, 1860 (‘IPC’).

3. Upon the statement made on behalf of the Petitioner that the relationship between the parties was of consensual nature and that the FIR was registered after a period of 6 and half years, this Court by its Order dated 12th April 2024 restrained the trial Court from framing charges.

4. Ms. Sana Raees Khan learned counsel represents the Petitioner and Mr. Vinod Chate, learned APP appears for the State. Mr. M.A. Khan represents the victim/ Respondent No. 2.

5. On a perusal of the FIR, at the outset, we indicated to Ms. Khan our reluctance to exercise our jurisdiction under Article 226 of the Constitution of India. Similarly, as the Final Report in the case is already filed in the trial Court, we also indicated to the learned counsel the alternate remedy available to the Petitioner under the Criminal Procedure Code, 1973. (‘the Code’). However, Ms. Khan persisted that, the matter be decided on merits only. Hence we proceeded to hear her and the petition finally.

6. Facts of the Case: –

6.1 As discerned from the FIR, it is the Respondent No.2’s case that she is a divorcee residing with her minor son at a house at Palghar. She became acquainted with the Petitioner as they were residing nearby. The Petitioner secured some employment for her as a junior artist to work in a TV serial. Their friendship grew and the Petitioner made a promise to marry her and even offered to look after her minor son, begotten of her previous marriage. Believing in his promise, the victim started going out with the Petitioner. In March 2016, he took her to Kailash Lassiwala Hotel in Dadar and established sexual relations with her. He also took her to various other hotels in Malad, Vajreshwari, Mira Road, etc where they had sexual relations. In 2018, the Petitioner rented premises at Kandivali and told the victim that she should reside in the rented premises. She shifted there and the Petitioner used to reside with her about 2-3 days in a week. He continued to extend the assurance regarding marrying her. They continued the relationship and the victim time and again asked him as to when they would be married. He started avoiding the topic, leading to arguments between them. The Petitioner assaulted her with fists and kicked her. Thereafter, she refused to reside with him and shifted to her aunt’s house with her son.

6.2 The Petitioner came to Bhayander and apologised to her and once again promised that they would be married soon. Once again on this assurance, the victim shifted to another room rented by him and once again resumed their intimate relationship. It is the contention of the victim that she became pregnant from the Petitioner and hence insisted that they should get marry at the earliest. At this stage, the Petitioner refused to marry her and told her to abort the child. It is stated that even during the pregnancy, despite her refusal to have sexual relations with him, the Petitioner forcibly raped her. The Petitioner then told her that he will give her money and she should undergo an operation to terminate the pregnancy. He abused her in filthy language and beat her. The victim has given birth to the child but yet the Petitioner has refused to marry her. In fact he is also denying the paternity of the child. The victim realised that, she has been duped and hence she filed the present FIR.

7. Ms. Sana Khan urged the Court to quash the FIR on the following contentions: –

7.1 The relationship between the parties was purely consen