ORDER

Heard the learned counsel for the petitioner and learned APP for the State, Mr. Chandra Bhushan Prasad.

2. The learned counsel for the petitioner submits that the present quashing application has been filed seeking quashing of the F.I.R. being Kankarbagh P.S. Case No. 872 of 2023 dated 21.08.2023 registered under Sections 376, 420 and 406 of the Indian Penal Code (hereinafter referred to as the “IPC’).

3. The learned counsel for the petitioner submits that the issue, which arises for consideration in the present case, is whether sexual intercourse with woman amounts to rape, if consent of the prosecutrix was obtained by a false promise of marriage within the meaning of Section 375 of the IPC, it is further submitted that obtaining consent for sexual intercourse on false promise of marriage is considered as misconception of fact within the meaning of Section 90 of the IPC, thus it is not considered as a valid consent in the eyes of law and hence the accused would be charged under Section 375 of the IPC, as second explanation of Section 375 of IPC provides punishment of rape if sexual intercourse is done without victim’s consent. It is, thus, submitted that the law is clear that establishing physical relation on false promise of marriage amounts to rape.

4. The learned counsel for the petitioner next submits that law is not static rather is dynamic and changes in accordance with the needs of the society. It is further submitted that with passage of time, the society is changing, live-in relationship which was unthinkable about 40-50 years back is now slowly becoming the order of the day, marriage which was considered sacrosanct is breaking at the drop of the hat and the Courts are being flooded with matrimonial litigations, the day is not far when the Courts would be flooded with litigation of the present nature also.

5. It is further submitted that with rapid changes coming in the society, even the Courts have started taking a different view towards Section 375 IPC and have interpreted the term ‘consent’ in a broader way.

6. It is next submitted that when two consenting adults establish physical relation, the same is not an offence, if there is an affirmative conscious and voluntary consent to engage in physical relation.

7. The learned counsel for the petitioner further submits that before appreciating the facts of the case, it is necessary to make submissions relying on the Judgment of the Hon’ble Supreme Court.

8. It is submitted that the Hon’ble Supreme Court in the case of Dr. Dhruvaram Murlidhar Sonar vs. The State of Maharashtra & Ors. 2019 (18) SCC 191 [: 2019 (1) BLJ 273 (SC)], at Para-20 of the Judgment has held- “that the parties were in a relationship for quite some time and enjoyed each other company and when prosecutrix came to know that the appellant had married some other woman she instituted the complaint. It is not a case that there was any psychological pressure exerted upon her which forced her towards passive submission and that there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind, further held that subsequent breach of promise will not come within the ambit of Section 375 IPC relying on the case of Dilip Singh vs. The State of Bihar 2005 1 SCC 88.

9. The learned counsel for the petitioner further submits that the Hon’ble Supreme Court in the case of Shambhu Kharwar vs. State of U.P. & Anr. 2022 SCC Online SC 1032, held that where two consenting adults enter into a consensual relationship, no offence under Section 376 IPC is attracted as the crucial ingredients of rape as defined under Section 375 IPC are absent.

10. It is next submitted that the Hon’ble Supreme Court in the case of Sonu @ Subhash Kumar vs. State of U.P. 2021 SCC Online SC 181 [: 2021 (3) BLJ 171 (SC)], while dealing with the issue as to whether an allegation of establishing physical relationship and subsequent refusal to solemnize marriage will constitute an offence within the m