- 1 - NC: 2025:KHC-D:1219 CRL.P No. 103363 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 22ND DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR CRIMINAL PETITION NO. 103363 OF 2023 (482(Cr.PC)/528(BNSS)) BETWEEN: MEHABOOBALI S/O. ABDUANABI KURAGUND AGED ABOUT 32 YEARS, OCC. BUSINESS, R/O. SAJJANSHETTAR PLOT, TQ. BYADAGI, DIST. HAVERI-581106. …PETITIONER (BY SRI. ARAVIND D. KULKARNI, ADVOCATE) AND: 1. THE STATE OF KARNATAKA THROUGH BYADAGI POLICE STATION, BYADAGI CIRCLE, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, HIGH COURT BUILDING, DHARWAD-581106. 2. HASEENABANU D/O. RAJESAB KATENAHALLI AGED ABOUT 23 YEARS, OCC. HOUSEHOLD, R/O. ISLAMPUR ONI, BYADAGI VILLAGE, DIST. HAVERI-581106. …RESPONDENTS (BY SRI. ASHOK T.KATTIMANI, ADDL. GOVT. ADVOCATE FOR R1; NOTICE TO R2 IS SERVED) THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C., SEEKING TO QUASH THE CHARGE SHEET AS WELL AS ENTIRE PROCEEDINGS IN S.C. NO.32/2023 PENDING ON THE FILE OF 2ND ADDL. DISTRICT AND SESSIONS COURT, RANEBENNUR, REGISTERED AGAINST THE PETITIONER/ACCUSED FOR THE OFFENCE PUNISHABLE U/S 417, 420 AND 376(2) (n) OF IPC. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR B K MAHENDRAKUMAR Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.01.25 11:20:50 +0530 - 2 - NC: 2025:KHC-D:1219 CRL.P No. 103363 of 2023 ORAL ORDER The petitioner-accused has been charge sheeted for the offences punishable under Section 376, 417, 420 of IPC. 2. The case of the prosecution is that the petitioner- accused stating to be that he was in love with her and insisted to enter into a relationship and induced to have sexual intercourse by promising to marry. 3. Heard the learned counsel for the petitioner and the learned Additional Government Advocate for the respondent- State. 4. The survivor –respondent No.2 although served with notice did not choose to appear in person or through her counsel, therefore placed exparte. 5. Perusal of the charge sheet indicated that the petitioner-accused and the survivor were allegedly in relationship from 2017 till June 2022. The charge sheet material indicated that except the allegation that the petitioner induced the survivor to have sexual intercourse by promising to marry, there is no allegation or substantive evidence that the petitioner fraudulently obtained consent of the survivor to have sexual intercourse, and mere breach of promise to marry does not satisfy the essential elements of cheating and rape. - 3 - NC: 2025:KHC-D:1219 CRL.P No. 103363 of 2023 6. The Hon'ble Supreme Court in the case MANDAR DEEPAK PAWAR AND ANOTHER supra has held as follows: The appellant and respondent No.2 were undisputedly in a consensual relationship from 2009 to 2011 (or 2013 as stated by the respondent No.2). It is the say of the respondent No.2 that the consensual physical relationship was on an assurance of marriage by the appellant. The complaint has been filed only in 2016 after three years, pursuant whereto FIR dated 16.12.2016 was registered under Section 376 and 420, IPC. On hearing learned counsel for parties, we find ex facie the registration of FIR in the present case is abuse of the criminal process. The parties chose to have physical relationship without marriage for a considerable period of time. For some reason, the parties fell apart. It can happen both before or after marriage. Thereafter also three years passed when respondent No.2 decided to register a FIR. The facts are so glaring as set out aforesaid by us that we have no hesitation in quashing the FIR dated 16.12.2016 and bringing the proceedings to a close. Permitting further proceedings under the FIR would amount to harassment to the appellant through the criminal process itself. We are fortified to adopt this course of action by the judicial view in (2019) 9 SCC 608 titled “Pramod Suryabhan Pawar Vs. State of Maharashtra & Anr.” where in the factual scenario where complainant was aware that there existed obstacles in marrying the accused and still continued to engage in sexual relations, the Supreme Court quashed the FIR. A distinction was made between a false promise to marriage which is given on understanding by the maker that it will be broken - 4 - NC: 2025:KHC-D:1219 CRL.P No. 103363 of 2023 and a breach of promise which is made in good faith but subsequently not fulfilled. This was in the context of Section 375 Explanation 2 and Section 90 of the IPC, 1860. The Criminal appeal is accordingly allowed. 7. The co-ordinate Bench of this Court in an identical circumstance in Crl.P.No.2189/2021 has held as follows: “The Apex Court, while delineating inter-play between promise of marriage and allegation of rape, in the case of PRAMOD SURYABHAN PAWAR v. STATE OF MAHARASHTRA, has held as follows: “14. In the present case, the “misconception of fact” alleged by the complainant is the appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v. State of Chhattisgarh [Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1: 2019 SCC OnLine SC 509], this Court held: “12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 IPC and, in such a case, - 5 - NC: 2025:KHC-D:1219 CRL.P No. 103363 of 2023 such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Sections 375 IPC and can be convicted for the offence under Section 376 IPC.” Similar observations were made by this Court in Deepak Gulati v. State of Haryana (2013)7 SCC 675: (2013) 3 SCC (Cri) 660] (Deepak Gulati): “21. … 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;” 15. In Yedla Srinivasa Rao v. State of A.P. (2006)11 SCC 615:(2007) 1 SCC (Cri) 557] the accused forcibly established sexual relations with the complainant. When she asked the accused why he had spoiled her life, he promised to marry her. On this premise, the accused repeatedly had sexual intercourse with the complainant. When the complainant became pregnant, the accused refused to marry her. When the matter was brought to the panchayat, the accused admitted to having had sexual intercourse with the complainant but subsequently absconded. Given this factual background, the Court observed: “10. It appears that the intention of the accused as per the testimony of PW 1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is - 6 - NC: 2025:KHC-D:1219 CRL.P No. 103363 of 2023 apparent from the testimony of PWs 1, 2 and 3 and before the panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused, completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuading the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent.” 16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman's “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception of fact” where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati [Deepak Gulati v. State of Haryana, (2013) 7 SCC 675:(2013) 3 SCC (Cri) 660] this Court observed: (SCC pp. 682- 84, paras 21 & 24) “21. … 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 - 7 - NC: 2025:KHC-D:1219 CRL.P No. 103363 of 2023 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 misrepresentation 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. *** 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.” (emphasis supplied) 17. In Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775] the complainant was a college-going student when the accused promised to marry her. In the complainant's statement, she - 8 - NC: 2025:KHC-D:1219 CRL.P No. 103363 of 2023 admitted that she was aware that there would be significant opposition from both the complainant's and accused's families to the proposed marriage. She engaged in sexual intercourse with the accused but nonetheless kept the relationship secret from her family. The Court observed that in these circumstances the accused's promise to marry the complainant was not of immediate relevance to the complainant's decision to engage in sexual intercourse with the accused, which was motivated by other factors: (SCCp.58, para 25) “25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that - 9 - NC: 2025:KHC-D:1219 CRL.P No. 103363 of 2023 the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married.” (emphasis supplied) 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.” (emphasis supplied) 9. The petitioner and the second respondent were in a relationship for more than 6 years. After perusing the charge sheet materials, it can be inferred that the sexual intercourse between the accused and the survivor was a consensual one and there was no inducement by the accused from inception to have sexual intercourse by promising to marry with an - 10 - NC: 2025:KHC-D:1219 CRL.P No. 103363 of 2023 intention to deceive. Engaging in sexual intercourse must be of a consequence of false promise made and must not be out of love and affection. Therefore, the continuation of criminal proceedings will be an abuse of the process of law. Accordingly, I pass the following: ORDER i. Criminal Petition is allowed. ii. The impugned proceedings in S.C.No.32/2023 on the file of II Addl. District and Sessions Judge, Ranebennur stands quashed. Pending IAs., if any, does not survive for consideration. Sd/- (HEMANT CHANDANGOUDAR) JUDGE HR Ct:vh List No.: 3 Sl No.: 7