Consent in rape cases must be informed; awareness of marital status negates claims of misconception or false promise.

ORDER

This petition, under Article 226 of Constitution of India , has been filed seeking following relief(s):

(i) That, the FIR bearing Crime no. 0008/2024 registered at Police Station Mahila Thana, Morena under Sections 376(2)(n), 323 , 506 of IPC (Annexure P/1), along with the charge sheet may kindly be quashed in the interest of justice.

(ii) That, other pending proceeding arising out of the FIR (Annexure P/1) may also kindly quashed in the interest of justice.

(iii) That, other relief which is just and proper in the facts and circumstances of the case may also be granted.

2. It is submitted by counsel for petitioner that respondent No.4 lodged a report on the allegation that she got married to Dharamveer S/o Natthilal Jatav on 25.04.2012 and was blessed with two children. Since she was being harassed by her husband, therefore, petitioner who is younger brother-in-law (Devar) of respondent No.4 took her side and persuaded that since she is being harassed by her husband, therefore, he would keep her with him. When she refused to do so, then he persuaded that she should believe him and he would keep her properly and would also perform marriage. One day, petitioner came to her house and committed rape by gagging her mouth. Thereafter, he started having physical relations with her continuously. As a result, she became pregnant and gave birth to a girl child on 28.06.2022. Thereafter, when she pressurized him to marry her, then he refused to do so and started assaulting her and also extended a threat to her life. Thus, it was claimed that petitioner has made her life miserable and also expressed that she has threat to her life because petitioner has got job in police department. It is also mentioned in the FIR that respondent No.4 is also ready to undergo DNA test. On the basis of this FIR, Crime No.8/2024 was registered at Police Station Mahila Thana Morena for offences under Sections 376(2)(n), 323 , 506 IPC .

3. Challenging the FIR, it is submitted by counsel for petitioner that even if the entire allegations are accepted on their face value, still it would appear that prosecutrix was a consenting party. Even assuming that consent of prosecutrix was obtained by misrepresenting that petitioner would marry her, still the provision of Section 90 IPC would not apply because it is not the case of respondent No.4 that she had obtained divorce from her first husband. It is submitted that during the subsistence of first marriage since second marriage is not possible, therefore, even otherwise respondent No.4 was aware of the fact that her marriage with petitioner is not possible and if even she continued with her relationship, then it cannot be said that her consent was obtained by misconception of fact. It is further submitted that statement of prosecutrix was recorded under Section 164 of Cr.P.C. and in that statement she has specifically stated that she had signed an application against the petitioner at the instance of her husband Dharamvir and the said application was sent by Dharamveer through post to Indore. About 4-5 months back, she received telephonic call from Mahia Thana. She informed the concerning investigating officer that the contents of the complaint are not correct and also expressed that she does not want any action on the same. On 17.05.2024, investigating officer came to her house and accordingly she went to the police station. She had also requested the investigating officer that she wishes to withdraw her application but investigating officer refused to do so. Videography was done and under the pressure of investigating officer she narrated whatever was mentioned in the application and under the pressure of investigating officer she had signed the papers.

4. Per contra, petition is vehemently opposed by counsel for the State as well as counsel for respondent No.4.

5. It is submitted by counsel for respondent No.4 that since petitioner had developed physical relationship with respondent No.4 by making a false repres