Consent cannot be presumed when both parties are married to others, leading to abuse of the court process.

ORDER

Dated this the 27^th day of March, 2026 The accused in S.C.No.1894/2019 on the file of the Fast Track Special Court, Nedumangad arising out of Crime No.124/2019 of Peroorkada police station filed this Crl.R.P. against the order passed by the learned Special Judge dismissing his application filed under Section 227 of Cr.P.C.

2. The offences alleged against the petitioner are under Sections

376(2)(a)(ii) of IPC .

3. The prosecution case is that during the period between October

2015 and May 2016 on several days, the accused committed rape upon the defacto complainant.

4. According to the learned counsel for the petitioner, this is a false case foisted against him and also that, even if the entire allegations leveled against the petitioner are believed as such, the same will constitute only a consensual relationship between them. Therefore, he prayed for quashing all further proceedings against the petitioner.

5. The petition was strongly opposed by the learned Public Prosecutor.

6. On a perusal of the FI Statement it can be seen that the defacto complainant and the petitioner were already married. It was at that time, they made friendship with each other and they also had physical relationship with each other. The claim of the defacto complainant is that she had given consent because of the promise of marriage made by the petitioner. Since, the defacto complainant and the petitioner were already married to other persons the claim that she had given consent because of the promise of marriage cannot be believed. Therefore, the allegations leveled against the petitioner does not make out the offence punishable under Sections 376 (2)(a)(ii) of IPC , and as such, further proceedings against the petitioner will only be an abuse of the process of the court.

Therefore, this Crl.R.P. is allowed. The order passed by the learned Special Judge dismissing Crl.M.P.No.194/2022 is set aside, the said application is allowed. The petitioner is discharged under Section 227 of Cr.P.C.