Consensual sexual relationships, absent coercion or deceit, do not constitute rape under IPC Section 376.

This Crl.M.C is filed to quash the proceedings against the petitioner in C.P.No.7/2018 on the file of Judicial First Class Magistrate Court-I, Manjeri arising out of Crime No.82/2017 of Karipur Police Station. Petitioner is the sole accused in the above case. The above committal proceedings was taken on file alleging offence punishable under Section 376 (2)(n) IPC .

2. The prosecution case is that the defacto complainant who is a divorcee, went abroad and got acquainted with the petitioner, who is a married man. There was sexual relationship between the petitioner and the defacto complainant from abroad and thereafter from India also. It is alleged that, since the petitioner refused to marry her there is cheating and hence the offence under Section 376 is made out.

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3. Heard the learned counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that, even if the entire allegations are accepted, no offence is made out. The Public Prosecutor submitted the contentions raised by the petitioner are all matter of evidence and this Court may not interfere with the Final Report.

4. This Court considered the contention of the petitioner and the Public Prosecutor. Annexure A is the complaint filed by the defacto complainant. The complaint was filed on 21.09.2017 before the Officer of the Karipur Police Station. In the complaint it is stated that in the year 2007, she married one Shamseer and in that relationship she had a son by name Jaseer. The relationship with the Shamseer was terminated in the year 2008. Thereafter, the defacto complainant went to Gulf. A close relative of the defacto complainant was there in Gulf and she and her relative was residing at separate places in Gulf. It is submitted that her relative contacted one Abdul Nasar for renewing her Visa, but he didn’t do anything CRL.MC NO. 6815 OF 2018 4 for renewing the Visa. Thereafter her relative returned to India and the defacto complainant continued at abroad and she was doing a job. It is submitted that during that period, one person contacted her over phone, introduced himself as one Nasar and he said about the Visa renewal of her relative. Thereafter it is submitted by the defacto complainant that, there was continuous telephone contact with the above mentioned Nasar and she used to meet Nasar at several places. It is also submitted that, when the inmates of the house where the defacto complainant was residing were not available, the above mentioned Nasar came there thrice and during that period they had sexual intercourse. On 07.07.2011 the defacto complainant returned from Gulf. After that the above mentioned Nasar also returned to India. When Nasar came back, the father and mother of Nasar took the defacto complainant and allowed to stay in a quarters on rent. Thereafter, whenever Nasar came to India he used to stay with the defacto complainant in the rented premises and in his own house. It is also stated by the defacto complainant that CRL.MC NO. 6815 OF 2018 5 from the Gulf, Nasar told her that he is having another wife, but it is the case of the defacto complainant that he assured that he will marry the defacto complainant and therefore she consented for the sexual intercourse. After about Six months, the petitioner returned to Gulf and the defacto complainant and her son was residing in the quarters at the expense of the petitioner. Thereafter, the petitioner shifted to another rented premises of one Abdu Rahiman. It is stated that, in that house the defacto complainant and his son stayed with the first wife of the petitioner and her three children. After 1 1/2 years, the petitioner came in the year 2013 and at that time the first wife of the petitioner returned to her house due to some illness.

Then the defacto complainant asked the petitioner to register the marriage, but it is submitted by the petitioner to her that, the marriage is conducted in front of God and in Mosque. The petitioner told