IMPORTANT POINT
Consent obtained under a misconception of fact, such as a promise of marriage, is not valid consent; this necessitates a trial to determine the nature of the consent.

ORDER :

A. Badharudeen, J.

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, to quash all further proceedings in S.C. No.1267/2021 on the files of the Fast Track Special Court, Karunagappally, arose out of Crime No.1623/2020 of Oachira Police Station, Kollam. The petitioner herein is the accused in the above case.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor, in detail. Though notice issued to the defacto complainant, she did not appear. Perused the relevant materials available.

3. In this matter, as per the FIS given by the defacto complainant on 11.06.2023, the defacto complainant has completed B.Com course and has been working as a Para legal volunteer in Taluk Legal Services Authority. Her marriage was solemnized with one xxx (name hidden) on 11.01.2010 and two girl children born in the wedlock. Thereafter, she had effected divorce of the said marriage during October, 2019. The children have been residing along with their father, after the divorce. The defacto complainant used to go for night classes as part of PSC coaching and the accused made acquaintance with her at the coaching centre. He informed the defacto complainant that, he has been working in the Fire Force Department. Thereafter, the accused informed the defacto complainant that, he also is a married person and divorce petition to dissolve his marriage has been pending before the Family Court. The accused assured the defacto complainant that, on dissloving his earlier marraige, he would marry the defacto complainant. Accordingly, at 10.00 am on 23.06.2019, the accused took the defacto complainant to his house and had sexual intercourse with her, on promising to marry her. Thereafter, the accused repeated the same on various occasions, on the said promise. It is further alleged that, as instructed by the accused, the defacto complainant had video calls with the accused in nude status, believing the promise of marraige. The specific case of the defacto complainant is that, the accused promised to marry her, after obtaining divorce of his earlier marriage and thereafter, the accused retracted from the said promise. On this premise, the prosecution alleges commission of offences punishable under Sections 376(2)(n), 506(i) of Indian Penal Code.

4. The learned counsel for the petitioner would submit that the relationship between the accused and the defacto complainant was purely consensual in nature and there is no misconception of facts and there is no breach of promise. Accordingly, he pressed for quashment of the proceedings.

5. The learned Public Prosecutor pointed out that in the private complaint lodged by the defacto complainant itself, there are materials in abundance to see sexual intercourse between the defacto complainant and the accused on the promise of marriage, primafacie. Therefore, consent is vitiated by misconception of fact, on the promise of marriage. Therefore, the quashment as prayed for is liable to be disallowed.

6. In so far as the allegation of commission of offence punishable under Section 376 of IPC is concerned, even though there is consent on the part of the victim, the same is vitiated, if the same is obtained on misconception of facts viz. promise of marriage, under fear and other vitiating elements. To put it differently, as per Section 90 of IPC, a consent is not such a consent as is intended by any section of the Indian Penal Code, if the consent is given by a person under fear of injury, or under a 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. Section 28 of the Bharatiya Nyaya Sanhita, 2023 [hereinafter referred as ‘BNS’ for short] is the provision analogous to Section 90 of IPC. The same is as under:

28. Consent known to be given under fear or misconception.- A consent is not such a consent as is intended by any section of this Sanhi