* Author
[2024] 3 S.C.R. 309 : 2024 INSC 181
XXXX
v.
State of Madhya Pradesh & Another
(Criminal Appeal No. 3431 of 2023)
06 March 2024
[C.T. Ravikumar and Rajesh Bindal,* JJ.]
Issue for Consideration
High Court, if justified in dismissing the petition filed by the appellant
u/s. 482 Cr.P.C. for quashing of FIR registered against him u/ss.
376 (2)(n) and 506 IPC.
Headnotes
Penal Code, 1860 – ss. 376 (2)(n) and 506 – Punishment for
committing rape repeatedly on the same woman – Punishment
for Criminal intimidation – Complainant’s case against the
appellant alleging rape on false pretext of marriage; and that
the appellant assured that he would marry her and take care
of her daughter if she divorced her husband – However, the
appellant refused to marry – Registration of FIR u/ss. 376 (2)
(n) and 506 – Petition for quashing of FIR by the appellant –
Dismissed by the High Court – Correctness :
Held: From the contents of the complaint, on the basis of which FIR
was registered and the statement recorded by the complainant, it is
evident that there was no promise to marry initially when the relations
between the parties started – In any case, even on the dates when
the complainant alleges that the parties had physical relations, she
was already married – She falsely claimed that divorce from her
earlier marriage took place in 2018 – However, the fact remains that
decree of divorce was passed two years later – Complainant was
a grown up lady about ten years elder to the appellant – She was
matured and intelligent enough to understand the consequences
of the moral and immoral acts for which she consented during
subsistence of her earlier marriage – In fact, it was a case of
betraying her husband – Furthermore, the prosecutrix admitted that
even after the appellant shifted to other State for his job, he used
to come and stay with the family and they were living as husband
and wife – Also appellant’s stand that he had advanced loan to the
prosecutrix which was not returned back – Thus, not a case where
the prosecutrix had given her consent for sexual relationship with
310 [2024] 3 S.C.R.
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the appellant under misconception – Impugned order passed by
the High Court set aside – FIR registered u/s. 376(2)(n) and 506
and all subsequent proceedings thereto quashed. [Paras 8, 9.1, 10]
Case Law Cited
Naim Ahamed v. State (NCT of Delhi), [2023] 1 SCR
1061 : (2023) SCC OnLine SC 89 – relied on.
Prashant Bharti v. State (NCT of Delhi), [2013] 1 SCR
504 : (2013) 9 SCC 293 – referred to.
List of Acts
Penal Code, 1860; Code of Criminal Procedure, 1973.
List of Keywords
Rape of a woman on false pretext of marriage; Quashing of FIR;
Consequences of the moral and immoral acts; Consent for sexual
relationship under misconception.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3431
of 2023
From the Judgment and Order dated 01.08.2022 of the High Court of
M.P. Principal Seat at Jabalpur in MCRC No.15992 of 2021
Appearances for Parties
Ashwani Kumar Dubey, Adv. for the Appellant.
D. S. Parmar, AAG, Ms. Mrinal Gopal Elker, Saurabh Singh, Santosh
Narayan Singh, Mohd. Faisal, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Rajesh Bindal, J.
1. The appellant in the present case is aggrieved of the order1
passed
by the High Court2
whereby a petition3
filed by him under Section
482 Cr.P.C. for quashing of FIR4
was dismissed.
1 Order dated 01.08.2022
2 High Court of Madhya Pradesh at Jabalpur
3 M.CR.C. No. 15992 of 2021
4 FIR No. 52 dated 11.12.2020 registered at P.S. Mahila Thana, Dist. Satna, (M.P.) under Sections
376(2)(n) and 506 IPC
[2024] 3 S.C.R. 311
XXXX v. State of Madhya Pradesh & Another
2. Learned counsel for the appellant submitted that the FIR in the
case in hand, which was got registered by respondent No.2/
complainant is nothing else but an abuse of process of law. The
complainant was a married lady having a grown up daughter of
15 years of age living with her parents. Claiming that in the same
house, the appellant was having physical relations with her with the
consent of her parents and daughter will be hard to believe that too
when she was already married. There could not be any question
of promise to marry given by the appellant to her at that stage.
There are large discrepancies in the complaint made to the police
on the basis of which the FIR was registered if considered in the
light of the statement which the complainant got recorded under
Section 164 Cr.P.C. The relations between the parties are shown
to be consensual, if any. The mis-statement by the complainant is
evident from the fact that she claimed to have got divorce from the
earlier marriage on 10.12. 2018 and married with the appellant in
a temple in January 2019 but it is belied from the fact that decree
of divorce from the earlier marriage of the complainant was passed
only on 13.01.2021. There was no question of any marriage prior
thereto. The initiation of proceedings against the appellant being an
abuse of process of law deserve to be quashed. In support of the
arguments, reliance was placed upon the decisions of this Court
in Naim Ahamed v. State (NCT of Delhi)5 and Prashant Bharti
v. State (NCT of Delhi)6
.
3. Learned counsel for the State submitted that after investigation,
charge-sheet has already been filed. The Courts are normally slow
to quash the FIR at that stage. In the case in hand, allegation of
rape on false promise to marry is clearly made out. At the stage of
quashing, only the contents in the FIR could be seen. On a perusal
thereof, a clear case is made out against the appellant.
4. Learned counsel for the complainant submitted that on account of
dispute with her husband from the earlier marriage, the complainant
was living with her parents. She, at that time, was having a grown
up daughter aged 15 years. The appellant was living in their house
as a tenant. Finding that the complainant in disturbed matrimonial
5 [2023] 1 SCR 1061 : 2023 SCC OnLine SC 89
6 [2013] 1 SCR 504 : (2013) 9 SCC 293
312 [2024] 3 S.C.R.
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life, from the advances made by the appellant, the complainant fell
in the trap. On a false promise to marry, both had started having
physical relations. They had even solemnized marriage in a temple
in January 2019. Even her family also knew about their relations
and marriage. It was all in good faith on the promise made by the
appellant as the appellant had even shown the complainant as a
nominee in an insurance policy purchased by him. With these facts
on record, a clear case of rape on false promise to marry is made
out against the appellant. The FIR does not deserve to be quashed
at the initial stage.
5. Heard learned counsel for the parties and perused the paper book.
6. Firstly, we refer to the stand taken by the complainant in the FIR
and the statement she got recorded under Section 164 Cr.P.C. There
are discrepancies therein.
6.1 In the FIR, she stated that she was managing her own cloth
shop. As there was a dispute with her husband, she was living
separately. On 10.12.2018, she got divorce from her husband.
She has a daughter aged 15 years. In 2017, Sadbhav Company
had taken first floor of their house on rent in which the appellant,
who was working with the company, stayed. During spare time,
he would come and sit on her shop. Gradually, the relations
developed. As she was living separate from her husband, the
appellant proposed that in case she takes divorce, he will
marry her. After the divorce of the complainant, on 10.01.2019,
at about 11.00 PM, the appellant came to her room and had
physical relations. He did not stop even when she said that
they were yet to be married. Further, on a promise to marry,
he had relations with her on 06.06.2020. When she insisted for
marriage, the appellant said that his family was not agreeing.
Finally, he refused on 11.12.2020. Thereafter, the FIR was got
recorded on 11.12.2020.
6.2 While getting her statement recorded under Section 164 Cr.P.C.,
she admitted that she knew the appellant since 2017. On account
of dispute with her husband, she was living with her parents.
As she got acquainted with the appellant, they fell in love. In
2018, the appellant went to Maharashtra for job. However,
he used to visit her home and take care of the complainant
as well as her daughter. In 2019, the appellant assured the
[2024] 3 S.C.R. 313
XXXX v. State of Madhya Pradesh & Another
complainant that he will marry her in case she takes divorce
from her husband who used to harass and beat her. For this
reason, she divorced her husband and solemnized marriage
with the appellant in a temple in January 2019. Thereafter,
they started living together with her daughter born from the
previous marriage. Despite assurance, the appellant did not
solemnize court marriage. After marriage was solemnized in
temple, treating the appellant as her husband, they both started
leading a married life having physical relations from January
2019 till June 2020. The appellant treated the complainant as
his wife. Thereafter, the appellant refused to respond to her
calls and even marry her.
6.3 There was complete change in the stand of the complainant
in her statement recorded under Section 164 Cr.P.C. The fact
remains that the parties admittedly were in relations from 2017
onwards. Some alleged promise to marry came in January
2019, from where they started having physical relations. It
has also come on record that it is not only the consent of the
complainant which is clearly evident but also of the parents and
daughter of the complainant as they were living in the same
house, where allegedly the appellant and the complainant were
having physical relations.
7. Further, in the FIR the complainant stated that she got divorce from
her earlier husband on 10.12.2018. In the statement under Section
164 Cr.P.C., she stated that marriage between the appellant and the
complainant was solemnized in a temple in January 2019. However,
the date of divorce as claimed by the complainant is belied from
the copy of the decree annexed with the appeal as Annexure P-9,
where divorce by mutual consent was granted to the complainant
and her husband vide judgment dated 13.01.2021. The aforesaid fact
could not be disputed. Meaning thereby, the complainant besides
the facts in the FIR and also in the statement under Section 164
Cr.P.C. regarding her divorce from the earlier marriage, sought to
claim that she had re-married with the appellant during subsistence
of her earlier marriage.
8. From the contents of the complaint, on the basis of which FIR was
got registered and the statement got recorded by the complainant,
it is evident that there was no promise to marry initially when the
314 [2024] 3 S.C.R.
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relations between the parties started in the year 2017. In any case,
even on the dates when the complainant alleges that the parties
had physical relations, she was already married. She falsely claimed
that divorce from her earlier marriage took place on 10.12.2018.
However, the fact remains that decree of divorce was passed only
on 13.01.2021. It is not a case where the complainant was of an
immature age who could not foresee her welfare and take right
decision. She was a grown up lady about ten years elder to the
appellant. She was matured and intelligent enough to understand the
consequences of the moral and immoral acts for which she consented
during subsistence of her earlier marriage. In fact, it was a case of
betraying her husband. It is the admitted case of the prosecutrix that
even after the appellant shifted to Maharashtra for his job, he used
to come and stay with the family and they were living as husband
and wife. It was also the stand taken by the appellant that he had
advanced loan of ₹1,00,000/- to the prosecutrix through banking
channel which was not returned back.
9. Similar issue was considered by this Court in Naim Ahamed’s case
(supra) on almost identical facts where the prosecutrix herself was
already a married woman having three children. The complaint of
alleged rape on false promise of marriage was made five years
after they had started having relations. She even got pregnant from
the loins of the accused. Therein she got divorce from her existing
marriage much after the relations between the parties started. This
Court found that there cannot be any stretch of imagination that
the prosecutrix had given her consent for sexual relationship under
misconception. The accused was not held to be guilty. Relevant
paragraph 21 thereof is extracted below:
“21. In the instant case, the prosecutrix who herself was
a married woman having three children, could not be said
to have acted under the alleged false promise given by
the appellant or under the misconception of fact while
giving the consent to have sexual relationship with the
appellant. Undisputedly, she continued to have such
relationship with him at least for about five years till she
gave complaint in the year 2015. Even if the allegations
made by her in her deposition before the court, are
taken on their face value, then also to construe such
[2024] 3 S.C.R. 315
XXXX v. State of Madhya Pradesh & Another
allegations as ‘rape’ by the appellant, would be stretching
the case too far. The prosecutrix being a married woman
and the mother of three children was matured and
intelligent enough to understand the significance and the
consequences of the moral or immoral quality of act she
was consenting to. Even otherwise, if her entire conduct
during the course of such relationship with the accused,
is closely seen, it appears that she had betrayed her
husband and three children by having relationship with
the accused, for whom she had developed liking for him.
She had gone to stay with him during the subsistence of
her marriage with her husband, to live a better life with
the accused. Till the time she was impregnated by the
accused in the year 2011, and she gave birth to a male
child through the loin of the accused, she did not have
any complaint against the accused of he having given
false promise to marry her or having cheated her. She
also visited the native place of the accused in the year
2012 and came to know that he was a married man having
children also, still she continued to live with the accused
at another premises without any grievance. She even
obtained divorce from her husband by mutual consent
in 2014, leaving her three children with her husband. It
was only in the year 2015 when some disputes must
have taken place between them, that she filed the
present complaint. The accused in his further statement
recorded under Section 313 of Cr.P.C. had stated that
she had filed the complaint as he refused to fulfill her
demand to pay her huge amount. Thus, having regard
to the facts and circumstances of the case, it could not
be said by any stretch of imagination that the prosecutrix
had given her consent for the sexual relationship with
the appellant under the misconception of fact, so as to
hold the appellant guilty of having committed rape within
the meaning of Section 375 of IPC.”
9.1 The aforesaid arguments squarely cover the legal issue raised
by the appellant.
10. For the reasons mentioned above, the impugned order passed by
the High Court is set aside. FIR No.52 dated 11.12.2020, registered
316 [2024] 3 S.C.R.
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under Section 376(2)(n) and 506 IPC at Police Station, Mahila Thana,
District Satna (M.P.) and all subsequent proceedings thereto are
quashed.
11. The appeal is accordingly allowed.
Headnotes prepared by: Nidhi Jain Result of the case:
Appeal allowed.
