The main legal point established in the judgment is the distinction between false promise and breach of promise in cases involving consent under Section 375 IPC, emphasizing the requirement for an active and reasoned deliberation for consent.

JUDGMENT :

MANOJ KUMAR TIWARI, J.

1. Applicant has challenged the charge-sheet dated 07.03.2017 filed against him under Section 323, 376, 504 & 506 I.P.C. summoning order dated 10.07.2017 passed by learned Additional Chief Judicial Magistrate, Haldwani, District Nainital and also the proceedings pending against him before learned Additional Chief Judicial Magistrate, Haldwani, District Nainital in connection with Criminal Case No. 2918 of 2017.

2. The F.I.R. was lodged by respondent no. 2 against the applicant at Police Station Mahilla Thana, Almora on 17.10.2016 under Section 323, 376, 504 & 506 I.P.C. As per the F.I.R., her marriage was solemnized with some other person in Ranikhet in 2006 and she has a four year old son, out of the said wedlock; her husband used to harass and beat her and, in the month of August, 2012, she met the applicant who promised that he will marry her and keep her happy; she told him that she is married and has not been divorced, but applicant told her that his father is a lawyer, who will help her in getting divorce from her husband. It is further stated that since she was destitute and was legally ignorant, therefore, she went with the applicant to his parental home at Almora, where she stayed for two days and, thereafter, she went to Haldwani together with applicant, where he took house on rent and they started living together and her son was also got admitted in a School; in the year 2012, around Deepawali, applicant made physical relation with her without her consent and, thereafter he continued to make physical relations without her consent for next four years. It is further stated that after four years, when she asked applicant that much time has passed and when will they get married, then applicant became furious and said that what is the need of marriage and they can continue to live like this only and when she protested, then applicant physically assaulted her and hurled abuses at her and told that if she again asks for marriage, then he will do away her life; when she complained about the matter to the parents of applicant, then they told her that it is her matter and they are not concerned with that and they will not let her in their house.

3. Upon investigation, Investigating Officer filed charge-sheet against the applicant under Section 323, 376, 504 & 506 I.P.C. Learned Magistrate took cognizance in the matter on 10.07.2017 and summoned the applicant. Thus, feeling aggrieved, applicant has approached this Court.

4. Learned counsel for the applicant contends that allegations made in the F.I.R. if taken on face value, indicate that relationship between applicant and respondent no. 2 was consensual and they happily lived together for more than four years, therefore, offence under Section 376 I.P.C. is not made out. He further contends that there is no allegation in the F.I.R. that the consent given by complainant was under fear or misconception. He further contends that respondent no. 2 was a married lady, therefore, applicant could not have married her unless she obtained a decree of divorce from a competent court of law. Thus, according to him, it is not a case of false promise and, in fact, it is a case of breach of promise, due to intervening circumstances beyond the control of the applicant.

5. This Court finds substance in the submission made by learned counsel for the applicant. Respondent no. 2 was a married woman with a school going son. She was mature enough to understand the significance and the consequences of the moral or immoral quality of act, she was consenting to. She lived with the applicant for more than four years and established intimate relations with the applicant, all through that period. She was aware that applicant cannot marry her till she gets divorce from her first husband, yet she became consenting partner to the sexual act of the applicant.

6. Learned State Counsel contended that respondent no. 2 had given consent for sexual relationship under the misconception of