1. The petitioner is the sole accused in S.C.No.862 of 2025 on the file of the Additional Sessions Court (Atrocities & Sexual Violence Against Women & Children), Thiruvananthapuram, arising from crime No.985/2024 of Peroorkada police station. The offences alleged against the petitioner are under Sections 354A, 354B, 354D, 376 and 376(2)(n) of IPC.

2. The prosecution case is that the accused with the intention to satisfy his sexual lust, made friendship with the de facto complainant through social media, took her to a room in the apartment in which he was residing and committed rape upon her on 7.9.2023. Thereafter on several days, he took her to different places and after promising to marry her, committed rape upon her and thereafter he refused to marry her and thereby he is alleged to have committed the aforesaid offences.

3. According to the learned counsel for the petitioner, even if the entire allegations levelled against the petitioner are accepted as such, the same will not constitute the offence under Section 376 IPC as the relationship between the petitioner and the defacto complainant was a consensual one. Further according to the learned counsel, the proposed marriage could not be conducted due to the unlawful demands made by the de facto complainant. Therefore, he prayed for quashing all further proceedings against the petitioner.

4. The petition was strongly opposed by the learned counsel for the defacto complainant/2nd respondent as well as by the learned Public Prosecutor.

5. From the FI statement it can be seen that the petitioner and the defacto complainant came in contact with each other on 21.5.2020 through instagram. Thereafter they maintained their relationship and they started attending functions together including their family functions. The petitioner insisted for sexual relationship with the defacto complainant even before the marriage. Initially the defacto complainant was against the said demand of the petitioner. However, thereafter at the instigation of the petitioner, she accompanied him to a hotel at Kazhakuttam wherein he allegedly committed sexual intercourse with the defacto complainant. Since the petitioner promised to marry her, again the defacto complainant accompanied him to different places in different hotels on various dates and they had sexual relationship . While so, on 7.3.2024, she became pregnant and they decided to abort the pregnancy and later on it got aborted in the normal way. As per the FI statement, the last physical relationship between them was on 11.5.2024. According to her, thereafter the petitioner evaded her request for a lawful marriage.

6. On a perusal of the above FI statement, it can be seen that immediately after the petitioner and the defacto complainant became friends, the petitioner insisted for physical relationship before marriage and though she was reluctant at the beginning, thereafter she appears to have conceded to his request and accompanied him to various hotels and they had sexual intercourse with each other. The relationship continued for more than two years and thereafter due to one reason or another, the marriage could not be conducted. The contention of the petitioner is that the defacto complainant made several demands which he could not perform and that is why the marriage could not be conducted. On the other hand, according to the defacto complainant the marriage could not be held due to the default of the petitioner himself.

7. In the decision in Prashant v. State of NCT of Delhi, (2025) 5 SCC 764, referring to two other earlier decisions, the Apex Court in paragraph 23 further held that :

                  “Recently this Court in XXXX vs. State of Madhya Pradesh, (2024) 3 SCC 496 held that when the relationship between the parties was purely consensual and when the complainant was aware of the consequences of her actions, the ingredients of the offence of rape were not made out. Similarly, in Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608 arising out of identical facts, this Court has enumerated the following:

                  “18. To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. 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.”

8. In the decision in Mahesh Damu Khare v. The State of Maharashtra and Another, (2024) 11 SCC 398, in paragraph 27 & 28 the Apex Court held that :

                  “27. In our view, 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.

                  28. 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.”

                  9.       In paragraph 30, 39 and 40, the Apex Court further held that :

                  30. It may be also noted that there may be occasions where a promise to marry was made initially but for various reasons, a person may not be able to keep the promise to marry. If such promise is not made from the very beginning with the ulterior motive to deceive her, it cannot be said to be a false promise to attract the penal provisions of Section 375 IPC, punishable under Section 376 IPC.

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                  39. In our view if criminality is to be attached to such prolonged physical relationship at a very belated stage, it 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.

                  40. It is evident from the large number of cases decided by this Court dealing with similar matters as discussed above 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.”

10. In Jothiragawan v. State Rep.By the Inspector of Police and Ors., MANU/SC/0377/2025 the victim accompanied the accused to a hotel room wherein she was allegedly raped by him. In spite of that, she again went along with him in the same hotel room and complained that he committed rape upon her again and again. In the above background in paragraph 11 and 12 the Apex Court held as follows :

                  11.     We have already found that there is no promise of marriage to coerce consent from the victim for sexual intercourse; as forthcoming from the statements made by the victim. The promise if any was after the first physical intercourse and even later the allegation was forceful intercourse without any consent. In all the three instances it was the allegation that, the intercourse was on threat and coercion and there is no consent spoken of by the victim, in which case there cannot be any inducement found, on a promise held out. The allegation of forceful intercourse on threat and coercion is also not believable, given the relationship admitted between the parties and the willing and repeated excursions to hotel rooms.

                  12.     On a reading of the statements made by the victim before the Police, both the First Information Statement and that recorded later on, we are not convinced that the sexual relationship admitted by both the parties was without the consent of the victim. That they were closely related and were in a relationship is admitted by the victim. The allegation is also of threat and coercion against the victim, to have sexual intercourse with the accused, which even as per the victim’s statement was repeated thrice in the same manner, when she willingly accompanied the accused to a hotel room. The victim had also categorically stated that after the first incident and the second incident she was mentally upset, but that did not caution her from again accompanying the accused to hotel rooms.

11.    In the decision in Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, in paragraph 21 & 24, the Apex Court held that:

                  “21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis-representation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.

                  24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term “misconception of fact”, the fact must have an immediate relevance”. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her”.

12. In the decision in Rajnish Singh Alias Soni v. State of Uttar Pradesh and Another, (2025) 4 SCC 197, after referring to various decisions in paragraph 30, the Apex Court held that :

                  “30. In conclusion, the Court held that unless it can be shown that the physical relationship was purely because of the promise of marriage and without being influenced by any other consideration, it cannot be said that there was vitiation of consent under misconception of fact. It was further held that even if it is assumed that a false promise of marriage was made to the complainant initially by the accused, the fact that the relationship continued for a period of nine long years would render the plea of the complainant that her consent for all these years was under misconception of the fact that the accused would marry her implausible.”

13. Therefore, the crucial question to be considered is whether at the very inception there is mutual consent to have sexual intercourse or the same is under a misconception of fact, on the promise of marriage or otherwise. Unless there is evidence to show that at the initial stage itself, the accused had no intention whatsoever of keeping his promise to marry the victim, the offence under Section 376 IPC will not be attracted.

14. In this case, there is absolutely no evidence to show that from the very beginning the petitioner had no intention to marry the de facto complainant. In the facts of this case, the claim of the defacto complainant that she had given consent for the sexual relationship because of misconception of facts cannot be believed. Therefore, further proceedings against the petitioner will only be an abuse of the process of the court and as such, all further proceedings against the petitioner is liable to be quashed.

In the result, this Crl.M.C is allowed. All further proceedings against the petitioner in S.C.No.862 of 2025 on the file of the Additional Sessions Court (Atrocities & Sexual Violence Against Women & Children), Thiruvananthapuram, arising from crime No.985/2024 of Peroorkada police station is quashed.