To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.” This was held in the case of Subash Kumar v State of Uttar Pradesh and Anr, [Criminal Appeal No 233 of 2021], by the Hon’ble Justice Dr. Dhananjaya Y Chandrachud in the supreme Court of India.
The above application was instituted under Section 482 of the Code of Criminal Procedure 1973 for quashing the charge sheet filed under Section 376 of the Indian Penal Code 1860. The FIR, which is registered on the basis of a written complaint of the second respondent states that the second respondent developed friendship with the appellant and that he assured that he would marry her. It has then stated that she was exploited physically for one and a half years and that the second respondent had also spoken to the parents and sister of the appellant. After a lapse of about a year and a half, the appellant is stated to have gone back to his home town which is Jhansi and made a phone call to the second respondent that, since he wishes to perform a “court marriage”. The respondent on reaching Jhansi, was informed by the father of the appellant that the appellant does not wish to marry her. The appellant’s father also stated that the appellant did not desire to meet her and further asked her to take some money and leave from there.
The counsel for the appellant placed reliance on Pramod Suryabhan Pawar v State of Maharashtra, (2019) 9 SCC 608, and submitted that the relationship between the appellant and the second respondent was consensual in nature. He also submitted that there was absolutely no intent on the part of the appellant, when he entered upon the relationship, not to marry the second respondent nor can it be even suggested that the promise to marry was false. Thus no offence has been made out within the meaning of Section 376 of IP
The counsel for the respondents submitted on the basis of the statement made by the respondent under Section 164 of CrPC that the relationship between the appellant and the second respondent was of a consensual nature and the parties were in the relationship for about a period of one and a half years. It was because the appellant had expressed a disinclination to marry the second respondent which led to the registration of the FIR.
The Court observed that “To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.” Even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of CrPC, no offence has been established. The charge sheet stands quashed.
