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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
SANJAY DHAR, J.
Syed Shahid Hamdani – Petitioner
Versus
UT of J&K and Another – Respondents
Bail App. No. 109 of 2021
Decided On : 02-03-2023
CRIMINAL LAW - RAPE, CONSENT, PROMISE OF MARRIAGE - Sections 375, 90 IPC; Section 482 Cr.P.C. - The court analyzed the definitions of consent under Section 375 IPC and the implications of misconception under Section 90 IPC. It emphasized that consent obtained under a false promise of marriage does not equate to valid consent. The court referenced various Supreme Court judgments to clarify that consensual relationships, even if based on a promise of marriage, do not constitute rape unless it can be shown that the promise was false and known to be so by the accused. The court ultimately concluded that the allegations did not establish a case of rape, leading to the quashing of the FIR.
Fact of the Case:
The petitioner challenged FIR No. 53/2021 for offences under sections 376, 420, and 506 of RPC. The complainant alleged that she was in a consensual relationship with the petitioner, who had promised to marry her but later denied this promise, leading to threats against her. The petitioner contended that the relationship was consensual and did not amount to an offence under Section 376 IPC.
Finding of the Court:
The court found that the relationship between the petitioner and the complainant was consensual and based on mutual feelings, not a false promise of marriage. The court noted that the complainant had continued the relationship despite knowing the family opposition, indicating a lack of misconception regarding consent.
Issues: Whether the allegations in the FIR constituted an offence under Section 376 IPC, particularly in the context of consent and the promise of marriage.
Ratio Decidendi: The court held that for consent to be invalidated under Section 90 IPC, it must be shown that the consent was given under a misconception of fact and that the accused knew or had reason to believe this. The court emphasized that consensual relationships, even if based on a promise of marriage, do not amount to rape unless the promise was false and known to be so by the accused.
Final Decision: The court quashed the FIR and the proceedings emanating therefrom, concluding that no offence was constituted against the petitioner based on the allegations made.
JUDGMENT :
SANJAY DHAR, J.
CRM (M) No. 274/2021
1. In the instant petition, the petitioner has challenged FIR No. 53/2021 for offences under sections 376, 420 and 506 of RPC registered with Police Station, Bahu-Fort, Jammu.
2. If appears that the complainant, Respondent No. 2 approached the Judicial Magistrate 1st Class (Munsiff), Jammu with an application under section 156(3) Cr.P.C. seeking a direction upon the SHO, Police Station, Trikuta Nagar, Jammu to register an FIR and investigate the case. Vide order dated 03.02.2021, passed by the learned Magistrate, the SHO, Police Station, Bahu Fort, Jammu was directed to register FIR against the petitioner and to carry out the investigation. It would be profitable to reproduce the relevant extracts of the complaint as under:
3. That said Shahid Hamdani expressed his desire to marry the applicant and in order to understand each other in a much better and efficient manner the said Shahid Hamdani proposed that they should start living together in a live-in relationship. The applicant was not initially opened to this suggestion and asked him that instead of living in a live-in relationship they should get married to each other. However the said Shahid Hamdani needed some time to get settled in his carrier and till that time the parties start living together in a live-in relationship in the house of applicant situated at Jalalabad, Sunjwan, Jammu.
4. That the parties reside together without any disturbance from any person till February 2019 and thereafter, he went back to his native palace. During this time the parties were in constant contact with each other and he assured that he will persuade his family for the marriage with the applicant. However despite the various attempts, the family of the said Shahid Hamdani that they will eliminate both of them as their marriage is not acceptable to them.
5. That the things became worse when the family members of the accused came to know that the applicant and said Shahid Hamdani were living together in a live-in relationship. The said family members of the accused openly extended threats to the applicant, that they will eliminate the applicant in case she insisted for marriage with Shahid Hamdani. However, despite all the odds the applicant as well as Shahid Hamdani decided to get marry with each other and date of marriage was decided in the second week of October 2019. The said Shahid Hamdani was supposed to meet the applicant on 04.10.2019 at Jammu. However he never reached Jammu and there is no information about the well being of said Shahid Hamdani.
6. That thereafter the applicant unaware of the nefarious designs of the accused filed a Habeas Corpus Petition in the Hon'ble High Court of J&K seeking production of the said accused. However, the accused again appeared before the applicant and expressed her inability to marry him as he was under family pressure. He again assured that he will marry the applicant in the month of November 2020 and thereafter started visiting the applicant again at her residence situated at Sunjwan where he again developed physical relation with the applicant.
7. That thereafter he never kept his promise of marriage and in the month of January 2021 met the applicant and told her that he never intended to marry her and in case the applicant will file any case he will eliminate her and also circulate her photos and videos on social media....”
3. Apart from narration of the above contents of complaint lodged by the prosecutrix/Respondent No. 2, it is pertinent to mention here that during investigation of the case her statement under section 164 Cr. P.C. has also been recorded. In her state
Consent obtained under a misconception of a promise of marriage does not constitute valid consent for the purposes of rape under Section 375 IPC unless it can be shown that the promise was false and ....
There is clear distinction between rape and consensual sex. If accused has not made promise with sole intention to seduce prosecutrix to indulge in sexual acts, such an act would not amount to rape.
(1) Exercise of inherent jurisdiction – High Court does not have to go in detail by way of minute examination about correctness or otherwise of facts alleged – Court has to examine the same by taking....
The central legal point established in the judgment is the importance of voluntary consent and the absence of deceit or false promises in determining the nature of a relationship and distinguishing b....
Consent in sexual relationships must be genuinely understood; presenting false pretenses may constitute a misconception but requires clear malicious intent to amount to rape.
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