Consent requires an active understanding of the circumstances and consequences, and a promise of marriage to a married person is not a valid inducement.

JUDGMENT

1. The petitioner, an accused in FIR No. 79/2021 registered with Mahila Thana, Police Station, Sawai Madhopur for offence under Section 376(2)(n) IPC, has sought for quashment of the FIR.

2. According to FIR, the prosecutrix, a married lady was not pulling relation with her husband well, therefore, she was residing along with her parents and preparing for REET competitive examination. In the year 2015, the prosecutrix met with the petitioner. The petitioner started one sided love with her. When the prosecutrix was ignoring the petitioner, the petitioner posed that he would commit suicide. The prosecutrix tried to convince the petitioner that she is already a married lady and has already lost one of her leg in an accident in her childhood, therefore, she was not suitable for the petitioner but the petitioner continued insisting for marriage and in the year 2015, on three to four occasions, established physical relations in the village of the prosecutrix in Gangapur city. Thereafter on different places of the District, the petitioner was in physical relations with the prosecutrix on the pretext of marriage. Whenever the prosecutrix asked the petitioner to get married with her, the petitioner kept deferring the matter saying that after getting a job, he would marry with the prosecutrix. It is further stated that the petitioner and the prosecutrix were living as husband and wife in a room at Jaipur and the petitioner was in physical relations with her till 22.9.2020. On 9.6.2021, the petitioner assured that they would marry on 10.6.2021. Thereafter mobile phone of the petitioner was switched off forever. Allegation is that the prosecutrix was sexually exploited on the pretext of marriage.

3. Mr. Rajneesh Gupta, learned counsel for the petitioner submits that entire statement disclosed in the FIR would make out a case of consensual relationship. The allegation that the consent was obtained on false pretext of getting married is pulpably false as marriage between the prosecutrix and one Ram Singh was subsisting on 20.9.2021 when the prosecutrix filed a case before the Civil Judge, Bamanvas for a decree of dissolution of marriage against Ram Singh. Copy of the divorce petition is at Annexure-5. Learned counsel next contends that respondent No.2 has not denied in its reply about the pendency of the divorce case against Shri Ram Singh brought by the complainant-prosecutrix. Learned counsel for the petitioner further contends that husband of the prosecutrix i.e. Ram Singh had lodged FIR No. 107 dated 1.4.2011 at Bamanwas Police Station for offences under Section 384, 365, 494, 392, 420 IPC and Section 3 SC/ST Act against the prosecutrix and others including one Chandan alleging therein that Chandan had provided a Car to the prosecutrix, thereafter both were in relationship in the nature of marriage and the fact was known to the parents of the prosecutrix, rather with their consent the relationship was there. Ram Singh had also alleged extortion of money and cheating by the prosecutrix and others.

The respondents in their reply have admitted the aforesaid FIR, however stated that the police after investigation did not find the allegations true.

4. Mr. Abdul Rahim Khan, learned counsel for the respondent No.2 submits that respondent No.2 belongs to Scheduled Tribe community and as per their customs, the provisions of Hindu law are not applicable and under the custom, she had already dissolved the marriage with her husband Ram Singh under permissible custom of "Nata". Learned counsel for the respondent No.2 next contends that the law is well settled that if the FIR discloses commission of cognizable offence, it cannot be quashed at the initial stage, the correctness of the allegation would be the subject matter of the investigation itself.

5. Now, the point for consideration is whether the relationship between the petitioner and the complainant as disclosed in the FIR and the attending circumstances makes out a case of consensual relati