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2024 Supreme(Online)(KER) 8856
HIGH COURT OF KERALA
A. BADHARUDEEN, J
ABDUL SATHAR – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 2649/2021
NIRMAL V NAIR, M.ANEESH(K/888/2009), MUHAMMED NASEEF BIN SALIM(K/349/2021), ARATHI PRABHAKARAN(K/001158/2022), M.S.UNNIKRISHNAN, M.ARDRA KRISHNAN, V.S.SREEJITH, K.SUNIL, SUSAN JACOB, ALEENA MARIA JOSE
Consent given under a misconception of fact arising out of a promise to marry cannot be considered valid consent under Section 90 of the Indian Penal Code.
Headnote:
Consent - Sexual Intercourse - Promise of Marriage - Misconception of Fact
Fact of the Case:
The prosecution alleged that the accused made a relationship with the defacto complainant on the promise of marriage and subjected her to repeated sexual intercourse on the said promise starting from 15.08.2017 till 04.06.2019. Thereafter, the accused retracted from the promise of marriage and neglected the defacto complainant.
Finding of the Court:
The court held that whether the sexual intercourse is the outcome of promise of marriage under a misconception of fact and the same is a relation fully on the basis of consent are matters of evidence, prima facie. Without allowing the prosecution to adduce evidence in support of the allegation that sexual intercourse is on the basis of misconception of fact arose out of promise of marriage, the court cannot consider quashing the proceedings.
Issues: Whether the sexual intercourse is the outcome of promise of marriage under a misconception of fact or a consensual relationship?
Ratio Decidendi: A promise to marry, without having any intention or any inclination to marry the victim, will vitiate the consent in terms of Section 90 of IPC. Consent given under a misconception of fact arising out of a promise to marry cannot be considered valid consent. The question of whether the consent was vitiated by a misconception of fact depends on the facts of each case.
Final Decision: The Criminal Miscellaneous Case is dismissed.
This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, to quash Annexure A2 final report and all further proceedings, pending against the petitioner in C.P.No.18/2021 on the files of Judicial First Class Magistrate Court, Malappuram, in Crime No.154/2019 of Kottakkal Police Station.
2.Heard the learned counsel for the petitioners and the learned Public Prosecutor in detail. Perused the relevant documents including Annexure-A2 final report, which is under challenge.
3.In this matter, the prosecution allegation is that the accused herein made relationship with the defacto complainant on the promise of marriage and subjected her to repeated sexual intercourse on the said promise starting from 15.08.2017 till 04.06.2019. Thereafter, the accused retracted from the promise of marriage and neglected the defacto complainant. On this premise, the prosecution alleges commission of offence punishable under Sections 376 (1) and 376(2)(n) of the Indian Penal Code .
4.The learned counsel for the petitioner read out the complaint produced as Annexure-A1(a) given by the defacto complainant before the Superintendent of Police, Malappuram. According to the learned counsel for the petitioner, going by the recitals in the F.I statement, this case would come within the ambit of consensual relationship and when the consensual relationship collapsed, this case has been foisted with ulterior motives. As such, the ingredients to constitute offence of rape are not made out. Therefore, the proceedings are liable to be quashed.
5.While vehemently canvassing quashment, the learned counsel for the petitioner relied on various decisions of the Apex Court as well as this Court in support of his contention.
6.The first decision in this regard is one reported in [ 2019 KHC 6829 : 2019(4) KHC SN 25 : 2019 (2) KLD 469 :
2019 (11) SCALE 209 : AIR 2019 SC 4010 : 2019 (9) SCC 608], Pramod Suryabhan Pawar v. State of Maharashtra & anr. In the said decision, the Apex Court considered the question whether the consent of a woman under Section 375 of Indian Penal Code is vitiated on the ground of “misconception of fact” where such misconception was the basis for her choosing to engage in the said act. In the case dealt therein, the appellant had promised to marry the complainant and had sexual intercourse with her. Whether it was done in bad faith or with the intention to deceive her was considered and it was found that the failure of the appellant to fulfill his promise in the year 2016 made in 2008 would not be construed to mean the promise itself was false. It was also observed by the Apex Court that, apart from the said fact, the complainant was aware that there existed obstacles to marry the appellant since 2008 and the complainant and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. In the said case, the Apex Court held that no offence under of I.P.C is made out.
7.Another decision placed by the learned counsel for the petitioner is Sonu @ Subhash Kumar v. State of Uttar Pradesh & anr., [ 2021 (2) KHC 314 : 2021 KHC OnLine 6136 :
2021 (3) SCALE 635 : AIR 2021 SC 1405 : 2021 (2) KLT OnLine 1152]. In this case, the Apex Court dealt with a case wherein FIR was lodged by the defacto complainant on 07.02.2018 before the S.H.O stating that the complainant developed friendship with the accused and the accused assured the complainant that he would marry her. Thereby she was exploited physically for one and a half years and the complainant had also spoken to the parents and sister of the accused. Further, the father of the accused had informed the complainant that he would arrange marriage of the accused with him. After a lapse of about one and a half years, the accused went back to his home and informed the appellant that since he wished to perform a court marriage, the appellant would come to Jhansi. Accordingly, the appellant reached Jhancy for the purpo
