Consent obtained under a false promise of marriage constitutes a misconception of fact, rendering it invalid under IPC, particularly in cases involving sexual offences.

JUDGMENT

This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita , 2023 and the prayer herein is as under:

“For these and the other grounds to be urged at the time of hearing, it is most humbly prayed that this Honorable Court may be pleased to quash Annexure-B final report and all further proceedings pending against the petitioner in S.C No.581/2024 on the files of the Fast Track Special Court-I, Kottarakkara, Kollam District, in the interest of justice.”

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

3. Perused the relevant records. In this matter, the prosecution alleges commission of offences punishable under Section 354 , 376 , 376 (1),(2),(n) and 312 of the IPC . The prosecution case is that the defacto complainant who married earlier, when divorced, got acquaintance with the accused during the month of March 2022, and they started to send messages through mobile phone. While so, the accused agreed to marry the defacto complainant and, thereafter, he was taken to Green Valley Hotel, Thenmala, on a day during the month of December, 2022 and she was subjected to sexual intercourse between 7:00 Hrs to 03:35 Hrs, promising to marry her. Accordingly, the defacto complainant became pregnant during the month of January, 2023. During the month of April, 2023 also the accused had, sexual intercourse with defacto complainant repeating promise of marriage. In an earlier occasion pregnancy was aborted. Thereafter, she became pregnant during the month September, 2023. According to the defacto complainant while continuing the relationship on the promise of marriage, three times she became pregnant and there was abortion as compelled by the accused. Thereafter, the accused retracted from the marriage.

4. The learned counsel for the petitioner read out the FIS and other records while seeking quashment of the crime on the submission that the relationship is purely consensual and therefore, offence under Section 376 of IPC would not affect.

5. The learned Public Prosecutor strongly opposed quashment highlighting the narration of the FIS, pointing out sufÏcient materials prima facie to see the commission of the above offences, including the offence under Section 312 IPC which would attract even independently.

6. In this connection it is relevant to refer the relevant decisions in paragraphs (I) to (X) dealing with the consensual sex and vitiation of consent on the ground of misconception of fact:

(I) A two Judge Bench of the Apex Court reported in [(2003) 4 SCC 46], Uday v. State of Karnataka is relevant in this connection, where the Apex Court dealt with a case in which was alleged by the prosecution that the prosecutrix was subjected to rape by the accused on repeated promise of marriage with assurance of marriage, wherein the Apex Court held in paragraphs 24, 25 and 26 as under :

“24. There is another difÏculty in the way of the prosecution. There is no evidence to prove conclusively that the appellant never intended to marry her. Perhaps he wanted to, but was not able to gather enough courage to disclose his intention to his family members for fear of strong opposition from them. Even the prosecutrix stated that she had full faith in him. It appears that the matter got complicated on account of the prosecutrix becoming pregnant. Therefore, on account of the resultant pressure of the prosecutrix and her brother the appellant distanced himself from her.

25. There is yet another difÏculty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC . Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent