A long-standing consensual sexual relationship, where parties lived together as husband and wife, cannot be prosecuted as rape under the pretext of a false promise to marry, as such claims do not establish consent given under a misconception of fact at the inception of the relationship.

Headnote:(A) Indian Penal Code, 1860 - S.376 and S.313 - Quashing of FIR - Long consensual relationship - False promise of marriage - Complainant and appellant lived as husband and wife for five years - Allegations of rape based on false promise of marriage do not hold where the relationship is clearly consensual and long-standing - Investigation omitted offence under S.313 IPC - No prima facie case for the offence of rape - High Court failed to exercise its inherent power to prevent abuse of process of law. (Paras 7, 14 and 15)

Facts of the case:
The appellant and the complainant had a long-term relationship spanning approximately five years. The complainant filed an FIR alleging rape under the pretext of a false promise of marriage after the appellant secured a government job. The FIR also initially mentioned an offence of forced abortion (S.313 IPC), which was subsequently omitted by the investigating agency due to lack of evidence. The appellant challenged the High Court order refusing to quash the FIR.

Findings of Court:
The Supreme Court observed that the complainant referred to the relationship as living as husband and wife and had voluntarily accompanied the appellant to hotels. The Court held that a subsequent refusal to marry does not automatically constitute rape under misconception of fact where the relationship was initially consensual. The Court set aside the High Court's refusal and quashed the FIR.

Issues: Whether the registration of an FIR for the offence of rape under section 376 IPC on the basis of a long-standing consensual relationship is sustainable in law.

Ratio Decidendi: A long-standing consensual sexual relationship where the parties hold themselves out as husband and wife does not constitute rape under the pretext of a false promise to marry, as the element of consent given under a 'misconception of fact' is not established at the inception of the relationship.

Result: Appeal allowed; FIR 28/2018 is quashed.

Table of Content
1. overview of fir facts and initial procedural hurdles. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9)
2. application of jurisprudence regarding quashing firs based on consensuality. (Para 10 , 11 , 12 , 13)
3. determining absence of prima facie case of rape in consensual relationships. (Para 14 , 15 , 16)

Reportable

J U D G M E N T

C.T. RAVIKUMAR, J.

Leave granted.

1. The captioned Appeal is directed against the order dated 26.07.2018 of the High Court of Judicature at Allahabad in Criminal Miscellaneous Writ Petition No. 16825 of 2018. The said Writ Petition was filed under Article 226 of the Constitution of India seeking quashment of FIR dated 21.02.2018 bearing Case Crime No. 28 of 2018 registered under Sections 376 and 313 of the Indian Penal Code, 1860 (for short the ‘IPC’) at Police Station Nandganj in Ghazipur District of the State of Uttar Pradesh. In view of the fact that quashment of FIR was sought under Article 226 of the Constitution of India, it is relevant to refer to a decision of this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate¹(1998) 5 SCC 749. It was held therein that the High Court could exercise its power of judicial review in Criminal matters and it could exercise the power either under Article 226 of the Constitution of India or under Section 482 of the Code of Criminal Procedure, 1973 (for brevity ‘Cr.P.C’), to prevent the abuse of process of the court or otherwise to secure the ends of justice. Nomenclature under which a petition is filed is not quite relevant. If the court finds that the petitioner could not invoke the jurisdiction of the Court under Article 226, it may treat the petition under Section 482 , Cr. P.C.

2. Heard the learned counsel for the appellant and the learned counsel for the State of Uttar Pradesh for respondent Nos. 1 to 3 and also the learned counsel for respondent No. 4 (the complainant).

3. The gravamen of her complaint, based on which the above-mentioned crime was registered on 21.02.2018, is revealed from the following allegations made thereunder: -

“…My elder sister Meera Devi was married to Satendra Yadav Village Kukuda P.S. Nandganj, District – Ghazipur, Lalu Yadav S/o Seshnath Yadav R/o Atarsuya P.S. Nandganj District – Ghazipur used to come to my house along with the brother in law Ravindra Yadav of my elder sister, at that time about five years back I was a student of High School, then the said Lalu Yadav by way of deceiving myself promise that he will marry me and established physical relationship with me without my consent and started living with me as the husband. He used to say that he would marry me when he gets a job. My mother Rajvati Devi and my father Hari Singh Yadav was also of the knowledge of our relation. When my father and mother raised an objection about our relation then Lalu Yadav told her that he will marry Preeti. He told her that nobody should object and therefore my parents went silent and Lalu Yadav kept established with me the applicant without my consent due to which I became pregnant after the knowledge of which he give me a medicine of with which and abortion has occurred and when the said Lalu Yadav came to the house of the applicant on 28.09.2017 then he took the said applicant to Varanasi on 29.09.2017 and kept me in a hotel and again made physical relationship with me due to which I became pregnant in May 2017 and said Lalu Yadav did my abortion my pressuring me again, thereafter again 17.12.2017 the said Lalu Yadav took me to a hotel in Varanasi an made physical relationship with me their, thereafter Lalu Yadav got a job in army and after which he is refusing to marry the applicant…”

4. In the contextual situation, it is relevant to refer to the details given under item No. 3 in Annexure- P2/FIR, which read thus: -

“3 (a) occurrence of offence.

1. Day Date from – 05.01.2013

Date To – 05.01.2018

(b) Information received at P.S:

Date: 21.02.2018. Time: 21.34 hr.”

5. Before delving into the rival contentions, it is releva

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2024 Supreme(Online)(SC) 11072

SUPREME COURT OF INDIAC. T. Ravikumar, JLalu Yadav – AppellantVersusState of Uttar Pradesh – RespondentCriminal Appeal No. of 2024 (Arising out of SLP (Crl.) No. 9371 of 2018)

A long-standing consensual sexual relationship, where parties lived together as husband and wife, cannot be prosecuted as rape under the pretext of a false promise to marry, as such claims do not establish consent given under a misconception of fact at the inception of the relationship.

Cases Referred (3)

SUPREME COURT OF INDIA
C. T. Ravikumar, J
Lalu Yadav – Appellant
Versus
State of Uttar Pradesh – Respondent
Criminal Appeal No. of 2024 (Arising out of SLP (Crl.) No. 9371 of 2018)