Consent obtained under a false promise of marriage is vitiated and does not constitute valid consent under Section 90 of IPC.

ORDER :

A. BADHARUDEEN, J.

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973 to quash Annexure 1 FIR in Crime No.976/2022 registered by Mattannur Police Station and all proceedings based on it.

2. In this matter, prosecution alleges the commission of offence by the accused punishable under Section 376 of IPC.

3. The learned counsel for the petitioner would submit that the de facto complainant is a married lady who after giving consent to sexual intercourse with the accused, alleged that she was subjected to sexual intercourse on the promise of marriage. Therefore, the allegation itself is not prima facie made out. That apart now the de facto complainant who is arrayed as 2nd respondent, filed affidavit stating that the relationship is consensual and she has no grievance in this matter, supporting quashment.

4. The learned Public Prosecutor formally opposed quashment of the proceedings and at the same time, he conceded that as per the FIS the de facto complainant is a married lady.

5. I have gone through the FIS. The same would suggest that the de facto complainant is a lady who got married ten years back, had a child aged 9 years, maintained relationship with the accused and they had sexual intercourse. According to the de facto complainant, the accused offered to marry her and accordingly she consented to sexual intercourse.

6. The legal position as regards to consent and consent given on misconception of facts on the promise of marriage is well settled. Where a married lady gives consent to have sexual intercourse believing promise of marriage given by another man, the promise of marriage is an outright impossibility and the same is opposed to the restriction contained in Section 23 of the Indian Contract Act, 1872. In such cases, misconception on the promise of marriage is not prima facie believable. Therefore, the relationship with the accused to be held prima facie as the outcome of consent and accordingly no offence punishable under Section 376 IPC is said to be made out.

7. In this connection it is relevant to refer the relevant decisions in paragraphs (I) to (X) dealing with the consensual sex and vitiation of consent on the ground of misconception of fact:

(I) A two Judge Bench of the Apex Court reported in [(2003) 4 SCC 46], Uday v.State of Karnataka is relevant in this connection, where the Apex Court dealt with a case in which was alleged by the prosecution that the prosecutrix was subjected to rape by the accused on repeated promise of marriage with assurance of marriage, wherein the Apex Court held in paragraphs 24, 25 and 26 as under :

“24. There is another difficulty in the way of the prosecution. There is no evidence to prove conclusively that the appellant never intended to marry her. Perhaps he wanted to, but was not able to gather enough courage to disclose his intention to his family members for fear of strong opposition from them. Even the prosecutrix stated that she had full faith in him. It appears that the matter got complicated on account of the prosecutrix becoming pregnant. Therefore, on account of the resultant pressure of the prosecutrix and her brother the appellant distanced himself from her.

25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There