Point of Law : Where prosecutrix agrees to have sexual intercourse on account of her love and passion for accused and not solely on account of misconception created by 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. Such cases must be treated differently. If complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between parties would not constitute an offence under S.376 of IPC.

ORDER :

The petitioner is the sole accused in C.P.No.13/2016 pending before the Judicial First Class Magistrate Court-XI, Thiruvananthapuram which arises from Crime No.1398/2015 of Peroorkada Police Station. The offence alleged against the petitioner is under Section 376 of the Indian Penal Code (IPC).

2. The prosecution case is as follows :

The defacto complainant/2nd respondent is a married lady having a daughter aged 11 years and she is a journalist (Her marriage was legally terminated in the year, 2009 and a child born in the said relationship is residing along with her Ex-husband). The allegation is that the petitioner induced the 2nd respondent with a promise to marry her, to have sexual intercourse with her and later he withdrawn from the said promise and thus committed the offence of rape.

3. The present petition is filed by the petitioner seeking to quash Annexure-A1 final report submitted by the police after conducting the investigation. According to the petitioner, the contents of Annexure-A1 does not make out an offence of rape and, therefore, this is a fit case where the powers of this Court under Section 482 of the Code of Criminal Procedure (Cr.PC) is to be invoked.

4. Heard Sri.A. Rajasimhan, the learned counsel for the petitioner and Sri. Aravind V. Mathew, the learned Public Prosecutor. Even though a notice was served upon the 2nd respondent, there is no appearance for her.

5. The crucial contention taken by the petitioner is that even going by the allegations contained in Annexure-A1, the sexual intercourse between the petitioner and the 2nd respondent was on the basis of mutual consent and hence the same would not attract the offence of rape. On the other hand, the prosecution case is that the consent of the 2nd respondent was obtained on a false promise to marry her and thereby it is a consent obtained under a misconception.

6. The offence of rape is defined under Section 375 of the IPC. In the said provision, a man is said to commit “rape” if he commits any of the acts mentioned in sub-sections (a) to (d) therein, against the will and consent of a victim. Section 90 of the IPC explains “consent”, and it reads as follows:

“90. Consent known to be given under fear or misconception :

A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or

Consent of insane person : If the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or

Consent of child: Unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.”

Thus as per Section 375 r/w. Section 90 of the IPC, a sexual intercourse performed on the basis of a consent which was obtained under a misconception of fact amounts to rape. Thus, the sum and substance of prosecution case is that the sexual intercourse in this case was performed on the basis of a promise of marriage which was later broken by the petitioner and hence it cannot be treated as a sexual intercourse with the consent of the 2nd respondent.

7. In such circumstances, the only point to be considered is whether the consent of the 2nd respondent was obtained on a misconception of fact or as to whether a sexual intercourse performed on a promise of marriage can be treated as an instance of obtaining consent on misconception of fact.

8. The learned counsel for the petitioner relies on judgments rendered by the Hon’ble Supreme Court in Dhruvaram Muralidhar Sonar (Dr) v. State of Maharashtra & Others [2019(1)KHC 403], Denu P. Thampi v. Ms.X and Another [2019(3)KHC 199], Sonu@ Subhash Kumar v.State of Uttar Pradesh and Another [2021(2) KHC 314 (SC)], Denu.P.Thampi v. Ms.X and another [2019 (3) KHC 199] and S