A consensual sexual relationship between adults lasting for a prolonged period, where parties were aware of their marital status, does not automatically constitute rape under Section 376 IPC on the grounds of a failed promise to marry, unless it is proven the consent was obtained through a false promise from the inception.

O R D E R

1. Leave granted.

2. Heard Mr. Sachin Patil, learned counsel for the appellant and Rukhmini Bobde, learned counsel for the State. The Defacto complainant, though served, is not appearing.

3.The appellant seeks quashment of RCC No.328/2021 pending before the Judicial Magistrate First Class, Tuljapur, Taluk Tuljapur, Dist. Osmanabad, Maharashtra.

Digitaly signed by

KANCHAN CHOUHAN

D 18 a : t 1 e 6 : :42 1 0 4 2 I 6 S.. T 04.30 The said proceedings arise out of a chargesheet filed

Reason:

for offences punishable under Sections 376(2)(n), 377 and

506 of IPC. The chargesheet in turn was filed pursuant to a First Information Report dated 09.02.2021 lodged by the respondent no. 2 against the appellant.

5. According to the case of the complainant, complainant was earlier married to one "K" in the year 1998 but in

2012 due to differences they started living separately.

6. It is admitted in the complaint leading to the First Information Report that in 2017 itself before the divorce with "K" was finalised, complainant/respondent no. 2 gave an advertisement on a matrimonial site and created a profile for a second marriage.

7. It is the case of the complainant that the appellant got her number from the matrimonial site and kept in contact with her; he talked to her affectionately and video called her. The complainant avers that the appellant guaranteed that he would marry her. According to the complainant, on 17.10.2017, the appellant came to Tuljapur where she was living with her son. He stayed with the complainant for 2-3 days, helped her with the household work and also took care of her son. He even talked about marrying the complainant. The complainant was told that even the appellant was in the process of getting divorced from his first wife. According to the complainant, believing his words she divorced her husband.

8. The complainant states that one night in Tuljapur, the appellant against her will had sexual intercourse with her and also had unnatural intercourse. The complainant admits that even thereafter the parties were in a relationship and the appellant visited for 2-3 days and had a physical relationship. They even stayed in the hotel in Bhuj, Gujarat for four days and had a physical relationship.

9. According to the First Information Report, the physical relationship continued and the parties stayed together at a hotel in Surat. Further on 03.10.2020, the physical relationship continued for several days thereafter. The complainant even states that she transferred initially a sum of Rs. 10,000/- (Rs. Ten Thousand only) and in all a sum of Rs. 2,50,000/- (Rs. Two lakh fifty thousand only).

10. It is stated that on 06.02.2021 when she came to Surat and called the appellant to meet her at night, he did not come. She called again next morning for which there was no response. It is stated that in the morning the appellant called her to Sumul Dairy Road. The complainant stated that she wanted to marry him but the appellant's brother stated that he would not let them get married and the appellant also refused to marry.

11. It is at this point, the complainant came to Mahidharpura Police Station to file a complaint on 08.02.2021, stating that after giving a guarantee that he would marry her, the appellant refused to marry the complainant.

12. Thereafter, the complainant states that by this process the appellant lured her with the promise of marriage against her will and established physical intercourse including forcible sexual intercourse. Chargesheet has been filed for the offences punishable under Sections 376(2)(n), 377 and 506 IPC.

13. The High Court, on being approached, has dismissed the quash petition primarily on two grounds, one that earlier quash petition was dismissed as withdrawn and secondly, the offences required trial.

14. Mr. Sachin Patil, learned counsel for the appellant submits that both the appellant and the complaina