ABOOBAKKAR V.S v. State of Kerala and Seena Nazeer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **TUESDAY, THE 23RD DAY OF AUGUST 2016/1ST BHADRA, 1938** **Crl.MC.No. 4393 of 2016 () ---------------------------** ## **CRIME NO. 157/2016 OF ERNAKULAM NORTH POLICE STATION , ERNAKULAM** ## **PETITIONER(S)/ACCUSED: ---------------------** **ABOOBAKKAR V.S,** **S/O V.A SULAIMAN, AGED 40 YEARS, VELLEKATU HOUSE, CHELAKULAM, VENGOLA PO, PERUMBAVOOR 683554.** **BY ADVS.SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.K.R.MONISHA SRI.THOMAS T.VARGHESE** **RESPONDENT(S)/STATE AND DEFACTO COMPLAINANT.: ---------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM . REPRESENTING THE STATION HOUSE OFFICER, ERNAKULAM TOWN NORTH POLICE STATION, 682018.** ## **2. SEENA NAZEER,** **D/O M. SAMUEL, KUNDEKATH HOUSE, VYLOPPILLY LANE, KALOOR, ERNAKULAM 682017.** **R2 BY ADV. SMT.DAISY A.PHILIPOSE R BY PUBLIC PROSECUTOR SMT.M.T.SHEEBA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 1208-2016, THE COURT ON 23/8/2016 PASSED THE FOLLOWING:** **Crl.MC.No. 4393 of 2016 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-----------------------** **ANNEXURE A1 TRUE COPY OF THE FIR IN CRIME NO.157/2016 OF ERNAKULAM TOWN NORTH POLICE STATION DATED 29.01.2016.** **ANNEXURE A2 TRUE COPY OF THE COMPLAINT FILED BY THE 2NS RESPONDENT AS CMP.NO.200/2016 BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM DATED 25.01.2016.** **ANNEXURE A3 TRUE COPY OF THE AFFIDAVIT FILED BY THE 2ND RESPONDENT DATED 13.7.2016.** **RESPONDENT(S)' EXHIBITS ----------------------NIL** **/TRUE COPY/ PS TO JUDGE.** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.M.C.No.4393 of 2016** - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of August, 2016 ## **O R D E R** This petition under Section 482 Cr.P.C.is filed to quash Annexure A1 FIR in Crime No.157/2016 of Ernakulam Town Police Station for offences punishable under Sections 376, 415 and 417 IPC. 2. The crux of the prosecution allegation is that, the petitioner herein had offered to marry the defacto complainant and they had been living together from 2010 to 2016. They had physical relationship on the basis of a promise that the petitioner herein would marry the defacto complainant. Ultimately, it was revealed that the petitioner herein was already married. Alleging commission of rape, on the basis of false promise to marry, a private complaint was laid. It was forwarded to the police for investigation. The police is undertaking the investigation, which is progressing. 3. The petitioner has approached this Court contending that the complaint was laid on the basis of a mistake and misconception and that the complainant herein had unconditionally withdrawn the allegations made by her Crl.M.C.No4393/2016 2 against the accused. She does not propose to proceed against the petitioner herein. Annexure A3 affidavit was filed in support of that. 4. Heard the learned counsel for the petitioner, learned counsel for the 2[nd] respondent and also the learned public prosecutor. Learned counsel for the second respondent submitted that his client does not propose to pursue the matter. 5. Since the offence alleged is one under Section 376 and is of serious nature, I am not inclined to quash the proceedings on an agreement. Hence, the petitioner was called upon to argue the matter on merits. 6. Learned counsel for the petitioner elaborately referred to Annexure A2 complaint laid by the defacto complainant alleging commission of offence. In Annexure A2,she had stated that she was married and due to matrimonial dispute, had laid a complaint against her husband. The petitioner herein, who was working as a police constable, intervened and offered to take care of her. The complainant got separated from the husband and thereafter started living with the petitioner in the year 2010. They had physical relationship till Crl.M.C.No4393/2016 3 January 2016. It was in the meanwhile that the complainant found out that the accused was already married and thereafter the relatives of the accused and others threatened her. Hence, the complaint was laid against the petitioner herein. 7. A perusal of the complaint shows that the complainant was married earlier. The complaint does not disclose whether she was legally married and whether the marriage was legally separated. There is nothing on record to show that the complainant got divorce in accordance with law and that the earlier marriage was not subsisting while entering into the relationship with the accused herein. This assumes significance, since the crucial question, of the complainant maintaining a genuine belief that the accused would marry her, will be possible only if the accused can legally marry the complainant. Further it has come on record that the accused himself was married, though the complainant claims that she was not aware of it. Hence, with respect to the complainant, in the absence of any knowledge regarding the marriage of the accused, she could have maintained the bona fide belief, provided she was already legally separated. However, through out the complaint, there is no specific Crl.M.C.No4393/2016 4 reference that he had obtained consent for the physical relationship on the basis of a false promise to marry. In page 2 of the complaint it is stated that she, believing that child and herself would get protection, agreed for matrimonial relationship with the accused. Thereafter, they remained as man and woman and lived together so, for a long period of five years. Even according to the complainant, the accused had promised that she would be maintained as his wife. 8. Long period of co-habitation without going for a marriage and in the absence of specific averment that the accused had made a mala fide or false promise to marry, it cannot be conceived as a physical relationship on the basis of mistake of facts as contemplated under Section 90 of IPC. 9. Learned counsel for the petitioner, relying on authorities contended that even having physical relationship with a women, who had attained majority, may not amount to rape, if it was a consensual one. According to learned counsel, at the most, materials on record may prove consensual physical relationship and does not thereby prove an offence under Section 376IPC. Learned counsel relied on the decision of this Court in **Jose Thettayil v. Station House Officer, Aluva East Police Station (2013(3) KHC 336)** wherein, it was held that Crl.M.C.No4393/2016 5 the voluntary submission by woman while she has power to resist, no matter how reluctantly yielded, amounts to consent and that removes an essential element from the crime of rape. The counsel further relied on the decision of the Division Bench of this Court in **Babu v. State of Kerala (2013(2) KHC 526)** to contend that the consent was given by the prosecutrix for physical relationship with a person with whom she was deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact, falling within Section 90 IPC. The counsel further relied on the decision in **Deepak Gulati v. State of Haryana (2013 KHC 4423)** to contend that there is a clear distinction between rape and consensual sex. According to learned counsel, the facts herein, at the most, indicate a consensual physical relationship. The counsel also relied on the decision reported in **Kaini Rajan v. State of Kerala (2013 KHC 4753)** to buttress the above argument. 10. The law on the above point has been discussed and settled in a catena of decisions, specifically in **Uday v. State of Karnataka (AIR 2003 SC 1639)** . This was followed in several other decisions. It appears that it has been consistently laid down by this Court that if a woman, who had attained the age of Crl.M.C.No4393/2016 6 majority, either on a promise to marry at a subsequent date or on a close relationship out of affinity volunteers to have a physical relationship with a male, this by itself will not amount to misconception of fact under Section 90 of the IPC and thereby, may not fall within the ambit of Section 376IPC. However, in both the above cases it was consistently held that if the consent was obtained on a false promise, which the accused did not believe even at the time of inception, it may amount to rape under Section 375IPC. In **State of H.P. v. Mange Ram (AIR 2000 SC 2798)** the Supreme Court while dealing with the issued held as follows: “Submission of the body under the fear or terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.” It was further held in **Uday v. State of Karnataka (supra)** as follows: Crl.M.C.No4393/2016 7 “..... We are inclined to agree with this view that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.” 11. It is evident that the law on the above subject is clear and settled. If facts prove a false promise, physical relationship may fall within the vice of Section 375IPC. 12. In the light of the above legal propositions, I am satisfied that even if there was physical relationship between the parties, it can only be on the basis of an expectation that the accused would marry the defacto complainant on a posterior date and not on the basis of a false promise to marry and Crl.M.C.No4393/2016 8 thereby does not fall within the scope of Section 376 IPC. Having regard to the above, successful prosecution on the basis of the above materials is not possible and hence, I am inclined to grant relief as sought for. In the result, Crl.M.C.is allowed. All further proceedings pursuant to Annexure A2 complaint and Annexure A1 FIR pending as Crime No.157/2016 of Ernakulam Town North Police Station stand quashed. Sd/- **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge.