IMPORTANT POINT
Consent obtained through a false promise of marriage can vitiate consent under IPC, but mere breach of promise does not constitute rape; the context and intentions of both parties must be carefully evaluated.

ORDER :

PARTHIVJYOTI SAIKIA, J.

Heard the learned counsel, Mr. M. K. Das for the petitoner. Also heard Ms. S. Jahan, learned Addl. P.P. for the State of Assam.

2. This is an application, filed under Section under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing the F.I.R. No. 283/2019, dated 18.06.2019, filed against the petitioner in connection with Kokrajhar P.S. Case No. 283/19, dated 18.06.2019, under Section 376 of the IPC.

3. On 18.06.2019, the informant had lodged one F.I.R. before the Police alleging that the petitioner had physical relationship with his 30 years old daughter on a promise of marriage.

4. Today, I have gone through the Case Diary. I find that the victim girl was a consented party to the act of the petitioner. Now the question arises whether the said act amounts to Section 375 of the IPC.

5. The learned counsel Mr. Das has relied upon the decision of the Hon’ble Supreme Court in the case of Pramod Suryabhan Pawar vs. State of Maharashtra and Anr, rendered in (2019) 9 SCC 608. Paragaraph-16 of the judgment reads as under:

“16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception of fact” where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed:

“21. … There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently.”

6. At this stage, quick revisit to the section 375 of this IPC is required.

[375. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—

First.— Against her will.

Secondly.—Without her consent.

Thirdly.— With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt

Fourthly.—With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.— With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.— With or without her consent, when she is under sixteen years of age

Explanation

Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception.—Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.]

7. The section 90 of the IPC has defined the word consent as under--Section 90. Consent known to be given under fear or misconception

A consent is not suc