Consensual sexual intercourse within a long-term relationship, where the complaint is filed after a financial dispute or breach of promise to marry, does not constitute rape if the consent was voluntary and not based on a misconception of fact.

Digitally signed by PADMAVATHI B K Location: High Court of Karnataka

THIS CRL.P IS FILED U/S 439 CR.PC (FILED U/S 483 BNSS) PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO.35/2026 OF MAHILA POLICE STATION, UDUPI, REGISTERED FOR OFFENCE PUNISHABLE UNDER SECTIONS 318(2), 64(2), R/W 3(5) OF BNS, DISMISSED IN CRL.MISC.NO.239/2026 BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, UDUPI, PENDING ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM, COURT, UDUPI.

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM:

HON'BLE MR. JUSTICE M.NAGAPRASANNA

ORAL ORDER

The petitioner - accused No.1 is before the Court seeking enlargement on bail for it having been turned down by the concerned Court in Cr.Misc.No.239/2026.

Heard Smt. Haleema Ameen, learned counsel appearing for the petitioner, Sri. B.N. Jagadeesha, learned SPP-I appearing for the respondent and have perused the material on record.

The facts adumbrated are as follows:

The petitioner and the complainant are known to each other for close to 5 years. They are said to have indulged in relationship, which was physical as well for all those years apart from the fact that the two together have invested in the stock market. The allegation springs when the stock market falls. The allegation is that the desired amount is not handed over by the petitioner to the complainant. The investment of the complainant started on 05.09.2024 with an amount of Rs.2,000/- and grew up to reaching the amount of Rs.79,50,000/-. The allegation as could be gathered from the complaint is that the returns were not satisfactory. On the said allegation, it appears that the offence of repeated rape has sprung on consensual acts that has happened between the two for over 4 years of them knowing each other or even 2 years of their consensual acts, as is narrated in the complaint.

Therefore, the petitioner is entitled to grant of bail in the case at hand owing to the fact of the law laid down by the Apex Court in the case of DHRUVARAM MURLIDHAR SONAR v. STATE OF MAHARASHTRA, 1(2019) 18 SCC 191, wherein it is held as follows:

“…. …. ….

18. In Uday v. State of Karnataka (2003) 4 SCC 46 : 2003 SCC (Cri) 775, this Court was considering a case where the prosecutrix, aged about 19 years, had given consent to sexual intercourse with the accused with whom she was deeply in love, on a promise that he would marry her on a later date. The prosecutrix continued to meet the accused and often had sexual intercourse and became pregnant. A complaint was lodged on failure of the accused to marry her. It was held that consent cannot be said to be given under a misconception of fact. It was held thus :

(SCC pp. 56-57, paras 21 & 23)

“21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.

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23. Keeping in view the approach that t