A longstanding consensual relationship and subsequent refusal to marry do not amount to the offence of rape under Section 375 IPC.

JUDGMENT :

ANISH KUMAR GUPTA, J.

1. Heard Sri Mirza Ali Zulfaquar, learned counsel for the applicant and Sri Prashant Saxena, the learned AGA for the State.

2. Vide order dated 03.09.2021, a notice was issued to opposite party no. 2. However, despite service of notice, none appeared on behalf of the opposite party no. 2.

3. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the charge sheet dated 16.03.2020 and cognizance/summoning order dated 10.12.2020 as well as the entire proceedings of Case No. 21205 of 2020 (State vs. Ziya Ullah), under Sections 419, 420, 376, 504, 506 IPC, arising out of Case Crime No. 20/2019, P.S. Mahila Thana, District Sant Kabir Nagar, pending before the Court of Civil Judge, Junior Division/Judicial Magistrate, Sant Kabir Nagar.

4. The brief facts as emerge from the F.I.R. and the statements under Sections 161 and 164 Cr.P.C. are as under:

(i) The date of birth of alleged victim is stated to be 01.06.1994 and she has stated that she passed the VIIIth Class in the year, 2008. Sister of the victim was married in Gorakhpur and the accused/applicant herein met first time to the victim in the marriage of her sister and since then whenever the victim used to visit her sister’s house, at Gorakhpur, she used to meet the accused/applicant herein. During these meetings, they fell in love with each other and the accused/applicant herein started visiting the house of the victim.

(ii) Out of such relationship, the victim and her parents sent the accused/applicant to Saudi Arabia by arranging the funds by selling the jewellery etc. When the applicant herein came back from Saudi Arabia, the victim and her family members pressurized the applicant herein for marriage with the victim. Even after the marriage of the sister of the applicant herein when the victim and her family members pressurized the applicant herein to marry the victim, the accused applicant herein denied to marry the victim. It is further alleged in the F.I.R. that the applicant herein made physical relations with the victim, between 2008 to 2018, under the promise of marriage against her will.

(iii) Ultimately, in the year 2018, the applicant herein denied to marry the victim. Therefore, in her 161 Cr.P.C. statement, the victim categorically states that the applicant used to have physical relations with the victim at her house in the presence of her parents in the house. She further stated that at the time of physical relationship established between them she was 17 years of age. She further states that in the month of June, 2011, first time relationship was established between them, which continued for about 8 years. In her 161 Cr.P.C. statement, the victim has stated that in the year 2013, the applicant had made physical relationship with her 8 years back under the promise of marriage. My parents had no objection on the visits of the applicant at her house and in the year, 2013, when the parents asked the applicant herein to marry the victim, he promised to marry the victim after the marriage of his sister and when he is able to built his own house.

(iv) This relationship continued upto February, 2019, when a complaint was filed by the victim, which was settled at the police station with the assurance by the applicant that he would marry the victim within next 10 months and after one month of such promise he again refused to marry and threaten the victim to do whatever she can.

(v) During investigation, medical examination of the victim was conducted on 22.06.2019, wherein she stated her age to be 25 years. After medically examining the victim, the doctors opined the age of the victim to be 20 years on 26.06.2019. After completion of the investigation the charge-sheet was filed on 16.03.2020 u/s 419, 420, 376, 504, 506 I.P.C.

5. The learned counsel for the applicant submits that the instant prosecution by the opposite party no. 2 herein amounts to misuse of process of law. As from the allegations made in the F.I.R. as well