IMPORTANT POINT
Rape – If a man retracts from his promise to marry a woman, consensual sex they had will not constitute offence of rape u/s 376 of IPC.

ORDER

Dr. Kauser Edappagath, J.—This Crl.M.C. has been filed to quash Annexure A1 FIR in Crime No.711/2022 of Ernakulam Central Police Station.

2. The petitioner is the accused. The 2nd respondent is the de facto complainant/victim. The offences alleged against the petitioner are punishable under Section 376(2)(n) and 313 of IPC.

3. The petitioner as well as the 2nd respondent are lawyers by profession. The prosecution case in short is that the petitioner by giving a false promise of marriage to the 2nd respondent had sexual intercourse with her at several places at Ernakulam and Wagamon. It is further alleged that the petitioner later on withdrew from his promise to marry the 2nd respondent and also made preparation to marry another girl and on coming to know of the same, the 2nd respondent attempted to commit suicide. It is also alleged that during the course of investigation it was revealed that the 2nd respondent was forced to undergo two miscarriages at the instigation of the petitioner.

4. I have heard Sri.Ramesh Chander, the learned senior counsel for the petitioner instructed by Sri.C.P.Udayabhanu, Sri.John S.Ralph, the learned counsel for the 2nd respondent and Sri.P.G.Manu, the learned Senior Public Prosecutor.

5. The learned counsel for the petitioner Sri.Ramesh Chander submitted that even if the entire allegations in the FI statement together with the materials collected during investigation are believed in its entirety, no offence under Section 376 of IPC is made out. The learned Senior Counsel further submitted that the statement given by the victim reveals that the petitioner and the 2nd respondent were in love and they were in relationship for the last four years and the sexual intercourse, if any, they had was only consensual in nature. The learned counsel for the 2nd respondent submitted that the dispute between the parties have been settled and the 2nd respondent has already sworn in an affidavit that she has no objection in quashing the proceedings. The learned Public Prosecutor submitted that the FI statement given by the victim would show that the ingredients of the offence of rape has been attracted and when prima facie case is made out, the jurisdiction vested with this Court under Section 482 of Cr.P.C cannot be invoked even if the dispute has been settled between the parties.

6. I went through the FI statement in detail. The reading of the FI statement would show that both the petitioner and the 2nd respondent are lawyers by profession and are practicing in this Court. They fell in love and they were in relationship for the last four years. The statement would further show that they voluntarily went to several places and stayed in hotels at Ernakulam and Wagamon and had consensual sex. In the meanwhile, the 2nd respondent suspected that the petitioner has developed a relationship with another lady and the relationship between the petitioner and the 2nd respondent strained on account of the same which led to the attempt of suicide by the 2nd respondent.

7. Section 375 of IPC, inter alia states that a man commits rape if he has had any form of sexual intercourse with a woman without her consent. Consent is at the centre of the offence of rape. Explanation 2 to Section 375 of IPC refers to the form of consent. It specifically says that 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. Thus, if the consent as described in Explanation 2 could be made out from the statement of the victim, the offence under Section 375 of IPC cannot be said to be attracted. The Apex Court in Deepak Gulati v. State of Haryana (2013) 7 SCC 675] and in Dhruvaram Murlidhar Sonar (Dr) v. State of Maharashtra (AIR 2019 SC 327) drawing distinction between rape and consensual sex observed that the court must very carefully examine whether the complainant had actually wanted t