IMPORTANT POINT
Misconception of fact – Merely because physical relations were established on a promise to marry, it would not, by itself, amount to rape.

JUDGMENT

The Criminal Petition has been filed under Sections 480 and 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity ‘the BNSS’), seeking to enlarge the Petitioner/Accused No.1 on bail in Crime No.383 of 2025 of Kancharapalem Police Station, Visakhapatnam District, registered against the Petitioner/Accused No.1 herein for the offences punishable under Sections 69, 75(1) read with 3(5) of the Bharatiya Nyaya Sanhita, 2023(for brevity ‘the BNS Act’).

2. Heard the learned counsel for the Petitioner, the learned Assistant Public Prosecutor and the learned Legal Aid Counsel for Respondent No.2 Perused the record.

3. As seen from the record, the petitioner and the respondent No.2/victim loved each other. They developed physical relations also. Later, the petitioner, aged about 23 years, refused to marry the respondent No.2, aged about 21 years. The relationship between the petitioner and the respondent No.2 continued for more than three years and as the petitioner refused to marry the respondent No.2, she gave a report to the police. The petitioner was arrested on 07.10.2025. He has been in judicial custody for the past 56 days. The petitioner is a permanent resident of PVR Enclave, NGO’s Colony, Murali Nagar, Visakhapatnam. He has got fixed abode. He is studying B.Com in Sri Chanakya Degree College, Visakhapatnam. So far, five witnesses have been examined. If he is enlarged on bail with some stringent conditions, he may not evade from the process of law.

4. The Hon’ble Apex Court in Amol Bhagwan Nehul v. State of Maharashtra, MANU/SC/0787/2025 wherein at para No.9 it is held as under:—

“9. ...In our considered view, this is also not a case where there was a false promise to marry to begin with. A consensual relationship turning sour or partners becoming distant cannot be a ground for invoking criminal machinery of the State. Such conduct not only burdens the Courts, but blots the identity of an individual accused of such a heinous offence. This Court has time and again warned against the misuse of the provisions, and has termed it a folly³ to treat each breach of promise to marry as a false promise and prosecute a person for an offence under section 376 IPC”.

5. In Kunal Chatterjee v. State of West Bengal, Spl Leave Petition (Crl.) No.7004 of 2025 the Hon’ble Supreme Court held as under:—

“We have heard learned counsel for the parties at length. Learned counsel appearing for the State has relied upon the definition of ‘Rape’ and would argue that the consent given by the minor is no consent and it would still be a rape. In our considered opinion, as regarding the rape being committed by the appellant when the prosecutrix was a minor, there is absolutely no evidence, and definitely no forensic evidence with the prosecution. It is only an allegation in the FIR after more than 03 years, in order to make out a case under the POCSO Act, that such an act of rape was committed three years back when she was a minor. She also categorically states that she consented to the act as there was a promise of marriage by the appellant”.

6. The Hon’ble Apex Court in Naim Ahmed v. State of (NCT) of Delhi, (2023) SCC Online SC 89 at para No.21 and 22 it is held as under:—

“21. ... The bone of contention raised on behalf of the respondents is that the prosecutrix had given her consent for sexual relationship under the misconception of fact, as the accused had given a false promise to marry her and subsequently he did not marry, and therefore such consent was no consent in the eye of the law and the case fell under Clause Secondly of Section 375IPC. In this regard, it is pertinent to note that there is a difference between giving a false promise and committing breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceited the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, wherea