ORDER :

This petition filed under Section 528 of the Bhartiya Nagarik Suraksha Sanhita (BNSS), has been preferred by the petitioners seeking quashment of the FIR dated 13.12.2021 bearing Crime No.41/21, registered for offences punishable under Section 376(2)(n), 506, 366 of IPC read with Section 3(1) (w-ii), 3(2)(va) of the SC/ST (Prevention of Atrocities) Act at Police Station Mahila Thana, Hoshangabad and consequential proceedings in Special Case No.SC ATR No.8/22 pending before the Special Judge, Hoshangabad, District Hoshangabad M.P.).

2. The facts of the case in brief are that the aforesaid FIR was lodged by the complainant/respondent No.2 against the petitioner alleging that she met the petitioner on 25.02.2015 since then the petitioner used to make physical relation with her alluring to marry her untill 03.10.2021. It is stated that the said relationship was premised on an assurance of marriage. It is further alleged that during the subsistence of the relationship, respondent No. 2 conceived and subsequently underwent termination of pregnancy, which she attributes to a threat to her life. It is alleged that the petitioner was having physical relation on the false pretext of marriage but now he is denying to marry her.

3. Learned counsel for the petitioner submits that the petitioner has been falsely implicated. It is argued that the relationship, if any, was consensual and not based on any false promise of marriage. It is further submitted that the prosecutrix is a married woman, who deliberately concealed this material fact from the petitioner. To substantiate the said contention, learned counsel draws attention to the application filed by respondent No.2 under Section 125 Cr.P.C. before the Court of Judicial Magistrate First Class, Pipariya, wherein the prosecutrix has herself admitted that her marriage was solemnized on 13.05.2013, and that she gave birth to a daughter on 02.04.2014. The said application for maintenance was filed on 21.09.2016 against her husband. It is contended that there is no documentary evidence on record to show that the prosecutrix had obtained a divorce from her husband prior to the alleged relationship with the petitioner. Therefore, the allegation that the petitioner exploited her on the false promise of marriage is inherently improbable and unsustainable in law because she had already married.

4. Learned Panel Lawyer for the State and learned counsel for respondent No.2 opposed the petition and submitted that the allegations in the FIR disclose commission of a cognizable offence and that the matter requires trial. The petition therefore, deserves to be dismissed.

5. Heard learned counsel for the parties and perused the record.

6. The foremost question for adjudication is that whether the petitioner was engaged in physical relation with the complainant on false pretext of marriage and thereafter her consent being obtained on misconception of facts and false promise of marriage.

7. It is well settled principle that consent of woman with respect to Section 375 of IPC must involve an active and reasoned deliberations towards the proposed acts to establish whether the consent was vitiated by misconception of fact arising out of promise to marry, two prepositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention to being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act. It is also established that a breach of a promise cannot be said to be a false promise.

8. In this regard reference can be had of a decision of the Hon'ble Supreme Court in the case of Maheshwar Tigga v. State of Jharkhand reported in (2020) 10 SCC 108 wherein it is held -

"13- The question for our consideration is whether the prosecutrix consented to the physical relationship under any misconception of fact with regard to the promise of marriage by th