Supreme Court: While considering the instant appeal wherein the appellant challenged Bombay High Court’s refusal to quash FIR against the appellant for offence of rape and breach of promise to marry; the Division Bench of B.V. Nagarathna and N. Kotiswar Singh*, JJ., allowed the appeal and opined that if criminality is to be attached to such prolonged physical relationship, as in the instant case, at a very belated stage can lead to serious consequences. It will open the scope for imputing criminality to such long-term relationships after turning sour, as such an allegation can be made even at a belated stage to drag a person in the juggernaut of stringent criminal process. “There is always a danger of attributing criminal intent to an otherwise disturbed civil relationship of which the Court must also be mindful”.
The Court further observed that there is a worrying trend that consensual relationships going on for prolonged period, upon turning sour, have been sought to be criminalised by invoking criminal jurisprudence.
Background and Legal Trajectory:
The appellant claims to be a social worker and contended that in 2012 he was approached by the complainant seeking help in resolving the issue of kidnapping of her elder daughter which he successfully accomplished. Thereafter, the complainant started visiting the appellant’s office to assist in his socio-political activities. The appellant further financially helped the complainant and when he could not afford to do so any further, helped the complainant to find employment. However, the appellant alleged that the complainant started to exhort money and became aggressive when ignored and started issuing threats to the appellant and his family.
Later, the appellant learnt that a FIR for offences under Sections 376, 420, 504 and 506 of Penal Code, 1860. It was alleged that the appellant had exploited the complainant multiple times by non-consensual forcible sexual intercourse with her. The complainant further alleged that the appellant had cheated on her by giving false promises of marriage, depositing fixed amount in her bank account and promising to purchase a house for her.
On getting to know about the FIR, the appellant applied for anticipatory bail before the Sessions Court and was successful in obtaining the same. Aggrieved by the grant of anticipatory bail, the complainant lodged another FIR against the appellant under provisions of POCSO Act, 2012, alleging that the appellant molested her daughter on two occasions in 2016 and 2017. The appellant was granted anticipatory bail in the 2nd case as well.
Thereafter the appellant approached the Bombay High Court seeking quashment of 1st FIR. However, the High Court refused to interfere under Section 482, CrPC, stating that the offence under Section 376, IPC is an offence against society which would require further investigation into the matter.
Court’s Assessment:
Perusing the matter, the Court discussed the scope of Section 482, CrPC, and noted that the High Court does not have to go in detail by way of minute examination about the correctness or otherwise of the facts alleged and the Court must examine the same by taking a prima facie view of the matter based on the materials on record. If on consideration of the factual matrix of the allegations, no prima facie case is made out of commission of any offence of which cognizance can be taken, the High Court would be within its power to intervene and quash any such complaint or FIR in exercise of the inherent power under Section 482 CrPC.
Further, the Court discussed aspects of Section 375, IPC which deals with rape, punishable under Section 376, IPC. The Court also referred to Section 90, IPC, which deals with consent given either under fear or misconception. Section 375 of the IPC clearly postulates that a person is said to have committed rape if he performs any of the sexual acts mentioned under 375 (a), (b), (c) and (d) without the consent of the woman. In terms of Section 90 of the IPC, if the consent is given under a misconception of fact, such a consent is no consent in the eyes of law and cannot be wilful and voluntary consent.
Relying on relevant precedents, the Court pointed out that if the person acts with an active understanding of the circumstances, actions and consequences of the act, it would indicate the presence of consent.
Taking note of the facts of the instant case, the Court considered whether making a false promise to marry amounts to an offence. It was noted that if a false promise of marriage is made to a woman by a man, thus deceiving the woman leading her to engage in sexual relations, it may amount to misconception of fact, in which case the consent given by the woman may be vitiated.
The Court opined that if a man is accused of having sexual relationship by making a false promise of marriage and if he is to be held criminally liable, any such physical relationship must be traceable directly to the false promise made and not qualified by other circumstances or consideration. A woman may have reasons to have physical relationship other than the promise of marriage made by the man, such as personal liking for the male partner without insisting upon formal marital ties.
Thus, in a situation where physical relationship is maintained for a prolonged period knowingly by the woman, it cannot be said with certainty that the said physical relationship was purely because of the alleged promise made by the appellant to marry her. Thus, unless it can be shown that the physical relationship was purely because of the promise of marriage, thereby having a direct nexus with the physical relationship without being influenced by any other consideration, it cannot be said that there was vitiation of consent under misconception of fact.
The Court further explained that for a promise to be a false promise amounting to misconception of fact within the meaning of Section 90 of IPC, it must have been made from the very beginning with an intention to deceive the woman to persuade her to have a physical relationship. Therefore, if it is established that such consent was given under a misconception of fact, the said consent is vitiated and not a valid consent. If such promise to marry is not made from the very beginning with the ulterior motive to deceive a woman, it cannot be said to be a false promise to attract the penal provisions of Section 375 IPC, punishable under Section 376 IPC.
In the instant case, the Court noted that assuming that the appellant had made the promise since 2008 when he met the complainant for the first time, the fact that they remained unmarried for a long period till 2017 without there being any protest or objection by the complainant, does not indicate the intention at the initial stage itself to make the promise falsely to marry the complainant. Making an allegation of non-fulfilment of promise to marry without undue delay by the promissee would, on the other hand, be an indicator of a false promise being made from the initial stage.
Taking note of the relationship between the appellant and complainant from 2008 to 2017, the Court pointed out that it was more of an extra-marital affair during the aforesaid period without any insistence by the complainant for getting married to the appellant. The fact that the complainant continued to have a physical relationship for a long time without any insistence on marriage would indicate the unlikelihood of any such promise made by the appellant for marrying her and it rather indicates that the relationship was a consensual one.
The Court opined that longer duration of the physical relationship between the partners without protest and insistence by the female partner for marriage would be indicative of a consensual relationship rather than a relationship based on false promise of marriage by the male partner and thus, based on misconception of fact. The Court pointed out that even if it is assumed that a false promise of marriage was made to the complainant initially by the appellant, the fact that the relationship continued for 9 years, would render the plea of the complainant that her consent for all these years was under misconception of fact that the Appellant would marry her implausible. Consequently, the criminal liability attached to such false promise would be diluted after such a long passage of time and in light of the fact that no protest was registered by the complainant during all those years.
“Such a prolonged continuation of physical relationship without demurral or remonstration by the female partner, in effect takes out the sting of criminal culpability and neutralises it”.
The Court also pointed out that it will be difficult to assume that the complainant being a mature woman with 2 grown-up children, was unable to discover deceitful behaviour of the appellant for 9 years during their subsisting relationship. The Court noted that discontinuance of financial support to the complainant, rather than the alleged resiling from the promise to marry by the appellant appeared to be the triggering point for making the allegation by the complainant after a long consensual relationship for about 9 years.
Hence, the Court opined that no prima facie case has been made out about commission of an offence of rape punishable under Section 376 IPC. Further, on perusal of the FIR, the Court noted that allegations of cheating made against the appellant did not fall within the scope of Section 420 IPC nor of any of the offences under Sections 504 and 506 of the IPC. Therefore, allowing the criminal proceeding against the appellant in the facts and circumstances to continue, where no criminal liability can be attached, would amount to abuse of the process of court. Hence, the FIR against the appellant was quashed and impugned order of Bombay High Court was set aside.
[Mahesh Damu Khare v. State of Maharashtra, 2024 SCC OnLine SC 3471, decided on 26-11-2024]
*Judgment by Justice N. Kotiswar Singh
Advocates who appeared in this case:
For Petitioner(s) Ms. Mrunal Dattatraya Buva, Adv. Mr. Gunnam Venkateswara Rao, AOR Mr. Dhairyashil Salunkhe, Adv.
For Respondent(s) Mr. Aaditya Aniruddha Pande, AOR
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