# Aruni Mittal & Ors v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 984
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-27
- **Case number:** Application U/S 482. No. 8020 of 2022
- **Bench:** Gajendra Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aruni-mittal-ors-v-state-of-u-p-anr-50962
- **Pages:** 13

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 161, 164 & 482 -
Indian Penal Code, 1860 - Sections 120-B,
323, 376, 420, 452, 504 & 506 - Application
under Section 482 Cr.P.C. - assailing the
3 All. Aruni Mittal & Ors. Vs. State of U.P. & Anr.
985
chargesheet and the summoning order - FIR -
allegation against the applicants that applicant
no.1 has raped the prosecutrix for over several
years under a false promise of marriage and
thereafter he kept trying to contract marriage
again with some another girl with the conspiracy
of his other family member - The applicants
challenged these allegations as fabricated and
politically motivated, citing contradictions and
lack of evidence, and accused the prosecution of
mechanical cognizance - Opposite party no.2
referenced a prior complaint by applicant no.1
stayed
by
the
High
Court
and
alleged
harassment via a rejected Section 156(3)
Cr.P.C.
application,
denying
any
financial
disputes - The applicants clarified that mediation
proceedings were never initiated and the
revision against the 156(3) order remains
pending - Upon reviewing the facts and case
law, the court finds that, the prolonged sexual
relationship to be consensual and not founded
on a false promise of marriage from inception,
with the prosecutrix fully aware of familial
opposition - held that, no offences of criminal
conspiracy or threats were made out against the
family members, who were within their rights to
oppose the relationship - thus, the court
concluded the criminal proceedings were an
abuse of process - consequently, the entire
criminal proceedings is quashed -application is
allowed, accordingly.
(Para - 17, 18, 19, 20)
Application Allowed. (E-11)

List of referred Cases: -

## Text

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984 INDIAN LAW REPORTS ALLAHABAD SERIES

19. In the instant case, from the F.I.R.
as well as from the Statements u/S 161 and
164 Cr.P.C., the following undisputed facts
emerged that the relationship between the
applicant herein and the opposite party no.2
was of a consensual nature:

(i) Parties were known to each
other for more than 15 years;

(ii) They were in active physical
relationship with the approval of parents of
opposite party no.2, since more than 8
years. Therefore, there was an active and
considered consent by the victim, with the
approval of her parents and the physical
relationship with her was not against her
will;

(iii) Subsequently, the applicant
herein has broken his promise to marry and
refused to marry the opposite party no.2
which resulted in the registration of the
F.I.R. against the applicant herein;

(iv) From the allegations made, it
is apparent that the promise to marry by the
applicant herein was not false from its
inception. Due to later developments, the
applicant has denied to marry the victim.

20. Thus, from the proposition of law
as enunciated in the above cited judgments,
this Court is of the view that even assuming
that all the allegations made against the
applicant herein are true for the purposes of
considering the application for quashing
u/S 482 Cr.P.C., no offence u/S 376 is
established as the relationship between the
parties was of consensual nature and which
has an approval of the family as well and
the initial promise by the applicant herein
was not false. It is only after subsequent
developments between the parties, the
applicant herein has refused to marry the
applicant herein. Since, the relationship
between the parties was longstanding and
the victim as well as her family members
knew the consequences of the relationship,
therefore, any subsequent breach of such
relationship would not amount to the
offence of rape u/S 375 I.P.C.

21. For the reasons stated above, the
instant application u/S 482 Cr.P.C. is
allowed
and
the
chargesheet
dated
16.03.2020
as
well
as
the
cognizance/summoning
order
dated
10.12.2020 and the entire proceedings of
Case No. 21205 of 2020 (State vs. Ziya
Ullah), under Sections 419, 420, 376, 504,
506 IPC, arising out of Case Crime No.
20/2019, P.S. Mahila Thana, District Sant
Kabir Nagar, pending before the Court of
Civil Judge, Junior Division / Judicial
Magistrate, Sant Kabir Nagar, are hereby
quashed.
----------
(2024) 3 ILRA 984
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.10.2023

BEFORE

THE HON'BLE GAJENDRA KUMAR, J.

Application U/S 482. No. 8020 of 2022

Aruni Mittal & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Saurabh Chaturvedi, Sri Ayush Kaushik,
Sr. Advocate

Counsel for the Opposite Parties:
G.A., Sri Dileep Kumar Pandey. Sri Gaurav
Pundir, Sri Nitin Sharma

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 161, 164 & 482 -
Indian Penal Code, 1860 - Sections 120-B,
323, 376, 420, 452, 504 & 506 - Application
under Section 482 Cr.P.C. - assailing the
3 All. Aruni Mittal & Ors. Vs. State of U.P. & Anr.
985
chargesheet and the summoning order - FIR -
allegation against the applicants that applicant
no.1 has raped the prosecutrix for over several
years under a false promise of marriage and
thereafter he kept trying to contract marriage
again with some another girl with the conspiracy
of his other family member - The applicants
challenged these allegations as fabricated and
politically motivated, citing contradictions and
lack of evidence, and accused the prosecution of
mechanical cognizance - Opposite party no.2
referenced a prior complaint by applicant no.1
stayed
by
the
High
Court
and
alleged
harassment via a rejected Section 156(3)
Cr.P.C.
application,
denying
any
financial
disputes - The applicants clarified that mediation
proceedings were never initiated and the
revision against the 156(3) order remains
pending - Upon reviewing the facts and case
law, the court finds that, the prolonged sexual
relationship to be consensual and not founded
on a false promise of marriage from inception,
with the prosecutrix fully aware of familial
opposition - held that, no offences of criminal
conspiracy or threats were made out against the
family members, who were within their rights to
oppose the relationship - thus, the court
concluded the criminal proceedings were an
abuse of process - consequently, the entire
criminal proceedings is quashed -application is
allowed, accordingly.
(Para - 17, 18, 19, 20)
Application Allowed. (E-11)

List of referred Cases: -

1. St. Vs Aruni Mittal & ors.crl. Case no. 20577
of 2021,

2. Pramod Suryabhan Pawar Vs The St. of Mah.;
(2019) 9 SCC 608,

3. Maheshwar Tigga Vs The St. of Jharkhand;
(2020) 9 SCR 482,

4. Naim Ahmad Vs State (NCT of Delhi); (2023)
1 SCR 106.

(Delivered by Hon'ble Gajendra Kumar, J.)

1. Heard Sri Ayush Kaushik learned
counsel for the Applicants, learned AGA
and Sri Nitin Sharma along with Sri Dileep
Kumar Pandey learned counsel for the
opposite party no.2 and perused the
records.

2. The present criminal misc.
application u/s 482 has been filed for the
quashment
of
the
chargesheet
dated
3.9.2021 and cognizance/summoning order
dated 17.11.2021 passed by the learned
Addl. Chief Judicial Magistrate, Court No.
5, Meerut as well as entire criminal
proceedings of crl. Case no. 20577 of 2021
(state vs. Aruni Mittal and others) by which
the applicants have been summoned in
Case Crime No. 141 of 2021 under Section
376, 506 and 120-B, I.P.C, P.S. Civil Lines,
District Meerut.

3. The prosecution story in brief is as
follows:-

There is an allegation against the
applicants that applicant no.1 has raped the
prosecutorix for years altogether and,
thereafter, he kept trying to contract
marriages again with some other girl with
the
conspiracy
of
his
other
family
members. F.I.R has been registered initially
on 14.03.2021 at 21.:10 hrs. at PS Majhola,
District Moradabad U/S 376, 506, 120-B
bearing case crime no. 204/2021 which
subsequently got transferred to P.S. Civil
Lines Meerut on 3.6.2021 and was
registered as Case crime no. 141 of 2021
U/S 376, 506, 120-B IPC. The alleged date
of occurrence as per the F.I.R version is
stated
to
be
between
1.1.2003
to
29.12.2020, and the said information being
initially received at the P.S is marked as on
03.03.2021. It is being alleged in the FIR
that first informant and the applicant No.1
both met in the year 2003-04 at Oxford
Institute, Gandhi Nagar, Meerut as both
used to take tuition there. Both were major
986 INDIAN LAW REPORTS ALLAHABAD SERIES
of above 30 years each. She fell in love and
till 2010 she was completely traped in his
love but the family members of applicant
no.1 were against this relationship as they
strongly opposed the same. In the year
2011, one day, applicant no.1 accepted her
as his wife before the presiding deity of
Balaji Mandir at Sadar, Meerut. She also
took vow of marriage before the deity and
accepted him (applicant no.1) as her husband
and the applicant no.1 took the advantage of
this situation to satisfy his lust and established
physical relationship in the name of being
married. She started to mount pressure upon
him to solemnize valid marriage but he could
not manage to get the marriage solemnized
validly. Nevertheless, he (applicant no.1) kept
establishing physical relationship with her till
28.12.2019. Later on, he maintained distance
from her and after some time, there took a hottalk between them on mobile phone. The
applicant no.1 was misled by the family
members and particularly, his sister Rashmi
Mittal, created atmosphere against the first
informant as she used to state that the first
informant is a politician lady, if she gets
married in the family, there will be held
meetings with many boys and kept trying to
tarnish and destroy her public image. After that
the applicant no.1 has left her company and
tried to marry other girl as all the family knew
their relationship, they in conspiracy, tried to get
him married with other girl. It has been
intended by the applicant no.1 marrying another
girl on 15.03.2021 in District-Moradabad with
the conspiracy of the other applicants. Chargesheet has been submitted by the investigating
officer after completing the investigation,
against the applicants on 3.9.2021, on which the
Learned A.C.J.M, Court no. 5 has taken
cognizance and issued summoning order
against the applicants on 17.11.2021.

4. In her statements under Section 161
and 164 Cr.P.C., she has almost reitereated the
allegations made in the FIR and stated that
since 2011 to 2019 she was continously raped
and taken to different hotels and raped there. He
committed rape continously for nine years
under the misconception of marriage and
refused to marry to the first informant. In her
statements she introduced the theory of video
recording.

5. Pleadings have been exchanged
between the parties.

5. Learned counsel for the applicants
submitted that the offences levelled are not
made out against the applicants as the whole
prosecution version stated in the impugned
F.I.R are totally false, fabricated and baseless as
there
never
existed
any
alleged
marriage/relationship of the applicant no.1 with
the first informant, only acquaintance turned
friendship relationship, was there, being
classmates earlier in an educational institution.
It is further submitted that the ruckus has been
created purposely by the informant on
15.03.2021, when the 'Sagai' ceremony/family
function of the applicant no.1 was going on in a
Hotel Drive Inn-24 in Moradabad with an
ulterior motive and on the basis of it, falsely
implicated the whole family to overcome the
pressure of financial transactions and liabilities
which had taken place in the past and create
undue pressure by lodging the impugned F.I.R
on the basis of said Marriage, which was never
solemnized. It is further submitted that in the
said
incident
which
happened
on
15.03.2021, the informant along with many
people, not only caused ruckus in order to
interrupt the ongoing ceremony, also
involved in fighting, due to which, various
injuries had also been caused to many
people, regarding which an F.I.R has been
registered by the applicant no.3 being case
crime no. 200 of 2021 U/S 323, 504, 506
I.P.C in P.S Majhola, District Moradabad.
In the said incident, various injuries have
3 All. Aruni Mittal & Ors. Vs. State of U.P. & Anr.
987
also been sustained by the applicant no.3
(mother of applicant no.1).

5. It is further submitted by the
learned counsel for the applicants that
genesis of the alleged incident is the
financial transactions which took place
between the first informant/opposite party
no.2 and applicant no.1 in the past which
has been stated, has taken place through the
electronic transfer modes & cash mode on
various dates and due to inability to return
back, a long delayed F.I.R has been lodged
after a lapse of around two years, falsely
implicating the applicants for the purpose
of harassment & extortion of money,
instead of paying back the borrowed sum of
money. It is further submitted that victim
has
also
admitted
that
they
have
solemnized their marriage at Balaji Mandir,
Meerut as is evident from the averments
made in the FIR itself.

6. Learned Counsel for the applicants
further submitted that there has been
stepwise and material contradiction in the
F.I.R version and the statement recorded
under Section 161 and 164 Cr.P.C. of the
informant/victim. So far as charge of
commission of rape is levelled upon the
applicant no.1 is concerned, it is clear that
she
willingly
entered
into
physical
relationship with the applicant no.1. The
version of the alleged F.I.R was improved
to the extent, by the allegations made in
161 Cr.P.C., mentioning therein that
videography has also been made by the
applicant no.1 and further much of it in 164
Cr.P.C., the theory of videography was
introduced, whereas no evidences are
brought in support of allegations made,
which creates doubt in the story of the
prosecution, as such, it is evident that there
being no such marriage, ever solemnized
and the only purpose of implication is to
avoid the financial liabilities and to get
political benefits, such false charges are
being levelled and merely on the basis of
earlier friendship/ relationship, no offence
is made out against the applicants under the
aforesaid sections as has been alleged in the
FIR, thereafter, charge-sheet has been
submitted by the Investigation Officer in a
very routine and perfectory manner, on
which, without applying the judicial mind,
learned court below has taken cognizance
mechanically
and
summoned
the
applicants.

7. On the other hand, learned AGA as
well as learned counsel for the opposite
party no.2 have very vehemently opposed
the aforesaid contentions and stated that
applicant no.1 has seduced and deceived
opposite party no.2 by way of marriage
before the deity in Balaji Mandir with first
informant and has tried to enter into second
marriage with some other girl, as such,
applicant no.1 cannot deny the marriage
solemnized with the first informant and
step away from the liability of husband and
cannot enter into any second marriage after
being in relationship with informant/victim
for such a long period of time right from
the year 2010 when the said marriage was
solemnized till the year 2019, committed
rape for altogether for 9 years. It is further
submitted that it is a case of false promise
of
marriage.
The
applicant
no.1
fraudulently enter into a marriage with the
first
informant
and
obtained
interim
protection fraudulently by stating that there
has been a marriage between the parties.
The applicants have not come before the
court with clean hands. In another case,
they obtained order for mediation and
conciliation on the basis of false statement
regarding live-in-relationship.

8. Learned counsel for the opposite
party no.2 relying upon the Supplementary
988 INDIAN LAW REPORTS ALLAHABAD SERIES
Counter Affidavit filed today in court also
fairly states that earlier one complaint case
has been filed by the applicant no.1 U/S
323, 452, 420, 504, 506 I.P.C before the
court of Lrd. ACJM, Court no. 5, Meerut
which has been challenged by the Opposite
party no. 2 before this Hon'ble Court in
Crl. Misc. 482 no. 31414 of 2022 (Meenal
Gautam Vs State of U.P. & Another) and to
which vide order dated 05.12.2022 further
proceeding of the case has been stayed and
the matter is referred to the mediation and
reconciliation centre. It is further submitted
by the counsel for the opposite party no.2
that an application U/S 156(3) Cr.P.C. was
filed by the applicant no.1 dated 18.03.
2021 in the court of learned ACJM Court
no. 5, Meerut only with a view to harass the
informant and to create undue pressure.
The said 156(3) application was rejected
vide order dated 08.10.2021, which has
never been challenged and the same has
obtained the finality. It has been also
pointed out by the counsel for O.P. no. 2
that there existed no financial transactions
between the parties and it is no where
produced on the records, hence, the
averments and arguments made by the
counsel for the applicants does not sustains
in the eyes of law.

10. Learned counsel for the applicants
submits that there has been never any such
marriage ever solemnized between the
applicant no.1 and first informant/opposite
party no.2, and allegations made are totally
false, fabricated and politically motivated
with an intent to harm the social
recognition and social image of the
applicant and in order to extort money,
although no material is on records or
evidences are ever adduced in support of
the allegations made in the FIR, and
version of prosecution made as either by
the
victim/informant
or
any
other
independent witnesses, not any proof of the
alleged marriage is established. It is further
submitted that with regard to the case
referred to the mediation centre and the
stay obtained by the opposite party no.2, it
has been specifically stated that the said
proceedings never initiated and it has
nothing to do with the present case.

11. So far as the arguments made by
the counsel for the opposite party no.2
regarding final order passed in the 156(3)
application filed by the Applicant no.1 is
concerned, the said order has not obtained
finality, but a revision has been filed
against the said order and the said revision
has been allowed by the learned Additional
Session Judge, Court no.2 , Meerut in
Criminal Revision No.1 of 2022 vide order
dated 31.08.22 and the said case is still
pending in the court concerned.

12. In reply to the arguments made
regarding there being no evidence or
version on records regarding the funds
transactions made, it has been categorically
stated that a details regarding the said
transactions have been mentioned in
various paras as well as Annexures filed in
the applications.

15. The Court has occasion to go
through the judgment of Hon'ble Apex
Court in case of Pramod Suryabhan
Pawar Vs. The State of Maharashtra;
(2019) 9 SCC 608. Relevant paragraphs of
the aforesaid order reads as follows:-

"1.1. The powers of the court
under Section 482 are wide and the court is
vested with a significant amount of
discretion to decide whether or not to
exercise them. The court should be guarded
in the use of its extraordinary jurisdiction
to quash an FIR or criminal proceeding as
3 All. Aruni Mittal & Ors. Vs. State of U.P. & Anr.
989
it denies the prosecution the opportunity to
establish its case through investigation and
evidence. In deciding whether to exercise
its jurisdiction under Section 482, the
Court does not adjudicate upon the
veracity of the facts alleged or enter into an
appreciation
of
competing
evidence
presented. The limited question is whether
on the face of the FIR, the allegations
constitute a cognizable offence. [Paras 7,
8] [432-G-H; 433-A; 434-C-D].

2.
The
instant
proceedings
concerned an FIR registered against the
appellant under Sections 376, 417, 504,
and 506(2) of the IPC and Sections 3(1)
(u), (w) and 3(2) (vii) of SC/ST Act. Section
376 of the IPC prescribes the punishment
for the offence of rape which is set out in
Section 375. Section 375 prescribes seven
descriptions of how the offence of rape may
be committed. Where a woman does not
"consent" to the sexual acts described in
the main body of Section 375, the offence of
rape has occurred. While Section 90 does
not define the term "consent", a "consent"
based on a "misconception of fact" is not
consent in the eyes of the law. The consent
with respect to Section 375 of the IPC
involves an active understanding of the
circumstances, actions and consequences
of the proposed act. An individual who
makes a reasoned choice to act after
evaluating various alternative actions (or
inaction) as well as the various possible
consequences flowing from such action or
inaction, consents to such action. This
understanding of consent has also been set
out in Explanation 2 of Section 375. In the
instant case, the "misconception of fact"
alleged
by
the
complainant
is
the
appellant's promise to marry her. 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. 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. [Paras
9, 10, 12-14, 16] [434-F-G; 435-E, G; 436D; 437-A-B; 438-E, F].

3.1 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. The allegations in the FIR
indicate that in November 2009, the
complainant initially refused to engage in
sexual relations with the accused, but on
the promise of marriage, he established
sexual relations. However, the FIR includes
a reference to several other allegations
such as, the complainant and the appellant
knew each other since 1998 and were
intimate since 2004; the complainant and
the appellant met regularly, travelled great
distances to meet each other, resided in
each other's houses on multiple occasions,
engaged in sexual intercourse regularly
over a course of five years and on multiple
occasions visited the hospital jointly to
check
whether
the
complainant
was
pregnant; and the appellant expressed his
reservations
about
marrying
the
complainant on 31 January 2014. This led
to arguments between them. Despite this,
the
appellant
and
the
complainant
continued to engage in sexual intercourse
990 INDIAN LAW REPORTS ALLAHABAD SERIES
until March 2015. [Paras 18, 19] [441-AE].

3.2 The allegations in the FIR did
not on their face indicate that the promise
by the appellant was false, or that the
complainant engaged in sexual relations on
the basis of this promise. There is no
allegation in the FIR that when the
appellant
promised
to
marry
the
complainant, it was done in bad faith or
with the intention to deceive her. The
appellant's failure in 2016 to fulfil his
promise made in 2008 cannot be construed
to mean the promise itself was false. The
allegations in the FIR indicate that the
complainant was aware that there existed
obstacles to marrying the appellant since
2008, and that she and the appellant
continued to engage in sexual relations
long after their getting married had
become a disputed matter. Even thereafter,
the complainant travelled to visit and
reside with the appellant at his postings
and allowed him to spend his weekends at
her residence. The allegations in the FIR
belie the case that she was deceived by the
appellant's
promise
of
marriage.
Therefore, even if the facts set out in the
complainant's statements are accepted in
totality, no offence under Section 375 of the
IPC has occurred. [Para 20] [441-F-H;
442-A]."

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.

16. The court has also occasion to go
through the judgment of the Hon'ble Apex
Court in the case of Maheshwar Tigga Vs.
The State of Jharkhand; (2020) 9 SCR
482. Relevant paragraphs of the aforesaid
order is reproduced hereinunder:

"4.1. It is not possible to hold in
the nature of evidence on record that the
appellant obtained the consent of the
prosecutrix at the inception by putting her
under any fear. Under Section 90 IPC a
consent given under fear of injury is not a
consent in the eyes of law. Under Section
90 IPC, a consent given under a
misconception of fact is no consent in the
eyes of law. But the misconception of fact
has to be in proximity of time to the
occurrence and cannot be spread over a
period of four years. It hardly needs any
elaboration that the consent by the
appellant was a conscious and informed
choice made by her after due deliberation,
it being spread over a long period of time
coupled with a conscious positive action
not to protest. The prosecutrix in her letters
to the appellant also mentions that there
would often be quarrels at her home with
her family members with regard to the
relationship, and beatings given to her. In
the facts of the present case, the solitary
statement of the prosecutrix that at the time
of the first alleged offence her consent was
obtained under fear of injury, is not
acceptable. [Paras 13, 14][490-G-H; 491A-D].

4.2 The facts and circumstances
of the present case show that the appellant
did not make any false promise or
intentional misrepresentation of marriage
3 All. Aruni Mittal & Ors. Vs. State of U.P. & Anr.
991
leading to
establishment
of
physical
relationship between the parties. The
prosecutrix was herself aware of the
obstacles in their relationship because of
different religious beliefs. An engagement
ceremony was also held in the solemn
belief that the societal obstacles would be
overcome, but unfortunately differences
also arose whether the marriage was to be
solemnised in the Church or in a Temple
and ultimately failed. It is not possible to
hold on the evidence available that the
appellant, right from the inception did not
intend to marry the prosecutrix ever and
had fraudulently misrepresented only in
order to establish physical relation with
her.
The
prosecutrix
in
her
letters
acknowledged that the appellant's family
was always very nice to her. [Para
18][492-F-H].

4.3 Therefore, the consent of the
prosecutrix was but a conscious and
deliberated choice, as distinct from an
involuntary action or denial and which
opportunity was available to her, because
of her deep-seated love for the appellant
leading her to willingly permit him liberties
with her body, which according to normal
human behaviour are permitted only to a
person with whom one is deeply in love.

17. The court has also occasion to go
through the judgment of the Hon'ble Apex
Court in the case of Naim Ahmad Vs.
State (NCT of Delhi); (2023) 1 SCR 106.
Relevant paragraphs of the aforesaid order
is reproduced hereinunder:

13. A reference of some of the
decisions of this Court dealing with the
different dimensions and angles of the word
'consent' in the context of Section 90 and
Section 375 would be beneficial for
deciding this appeal.

14.
In
Uday
vs.
State
of
Karnataka, the prosecutrix aged about 19
years had given her consent for having a
sexual intercourse with the accused with
whom she was deeply in love, and it was
alleged by the prosecution that the
prosecutrix continued to meet the accused
as the accused had given her a promise to
marry her on a later date. The prosecutrix
became pregnant and the complaint was
lodged on failure of the accused to marry
her. This Court while holding that under
the circumstances, the consent could not be
said
to
have
been
given
under
a
misconception of fact under section 90 of
IPC, held in para 21 and 23 as under :-

"21. It therefore appears that the
consensus of judicial opinion is in favour of
the view that the consent given by the
prosecutrix to sexual intercourse with a
person with whom she is 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. A false promise is
not a fact within the meaning of the Code.
We are inclined to 4 (2003) 4 SCC 46 12
agree with this view, but we must add that
there is no straitjacket 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.
992 INDIAN LAW REPORTS ALLAHABAD SERIES

22. -xxx- xx -

23. Keeping in view the approach
that the court must adopt in such cases, we
shall now proceed to consider the evidence
on record. In the instant case, the
prosecutrix was a grown-up girl studying
in a college. She was deeply in love with
the appellant. She was, however, aware of
the fact that since they belonged to different
castes, marriage was not possible. In any
event the proposal for their marriage was
bound to be seriously opposed by their
family members. She admits having told so
to the appellant when he proposed to her
the first time. She had sufficient intelligence
to understand the significance and moral
quality of the act she was consenting to.
That is why she kept it a secret as long as
she could. Despite this, she did not resist
the overtures of the appellant, and in fact
succumbed to them. She thus freely
exercised a choice between resistance and
assent.
She
must
have
known
the
consequences of the act, particularly when
she was conscious of the fact that their
marriage may not take place at all on
account of caste considerations. All these
circumstances lead us to the conclusion
that she freely, voluntarily and consciously
consented to having sexual intercourse with
the appellant, and her consent was not in
consequence of any misconception of fact."

15. In Deelip Singh alias Dilip
Kumar Vs. State of Bihar (supra), this
Court after discussing various earlier
decisions of this Court and other High
Courts, further explained the observations
made in Uday case (supra) and observed as
under:-

"28. The first two sentences in
the above passage need some explanation.
While we reiterate that a promise to marry
without anything more will not give rise to
"misconception of fact" within the meaning
of Section 90, it needs to be clarified that a
representation deliberately made by the
accused with a view to elicit the assent of
the victim without having the intention or
inclination to marry her, will vitiate the
consent. If on the facts it is established that
at the very inception of the making of
promise, the accused did not really
entertain the intention of marrying her and
the promise to marry held out by him was a
mere hoax, the consent ostensibly given by
the victim will be of no avail to the accused
to exculpate him from the ambit of Section
375 clause secondly. This is what in fact
was stressed by the Division Bench of the
Calcutta High Court in the case of Jayanti
Rani Panda [1984 Cri LJ 1535 : (1983) 2
CHN 290 (Cal)] which was approvingly
referred to in Uday case [(2003) 4 SCC 46
: 2003 SCC (Cri) 775 : (2003) 2 Scale 329]
. The Calcutta High Court rightly qualified
the proposition which it stated earlier by
adding the qualification at the end (Cri LJ
p. 1538, para 7) - "unless the court can
be assured that from the very inception the
accused never really intended to marry
her". (emphasis supplied) In the next para,
the High Court referred to the vintage
decision of the Chancery Court which laid
down that a misstatement of the intention of
the defendant in doing a particular act
would tantamount to a misstatement of fact
and an action of deceit can be founded on
it. This is also the view taken by the
Division Bench of the Madras High Court
in Jaladu case [ILR (1913) 36 Mad 453 :
15 Cri LJ 24] (vide passage quoted supra).
By making 14 the solitary observation that
"a false promise is not a fact within the
meaning of the Code", it cannot be said
that this Court has laid down the law
differently. The observations following the
aforesaid
sentence
are
also
equally
important. The Court was cautious enough
to add a qualification that no straitjacket
formula could be evolved for determining
3 All. Aruni Mittal & Ors. Vs. State of U.P. & Anr.
993
whether the consent was given under a
misconception
of
fact.
Reading
the
judgment in Uday case [(2003) 4 SCC 46 :
2003 SCC (Cri) 775 : (2003) 2 Scale 329]
as a whole, we do not understand the Court
laying down a broad proposition that a
promise to marry could never amount to a
misconception of fact. That is not, in our
understanding, the ratio of the decision. In
fact, there was a specific finding in that
case that initially the accused's intention to
marry cannot be ruled out."

16. In Deepak Gulati vs. State of
Haryana, this Court gave one more
dimension of the word 'consent' by
distinguishing 'Rape' and 'consensual sex'
and observed as under:

"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 5 (2013) 7
SCC 675 15 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. 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.

22. xxxxx

23. xxxxx

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".

17. Again in Dr. Dhruvaram
Murlidhar
Sonar
Vs.
State
of
Maharashtra and others (supra), this
Court interpreting the Section 90 and the
Clause - Secondly in Section 375 of IPC,
observed as under -

"23. Thus, there is a clear
distinction between rape and consensual
sex. The court, in such cases, must very
994 INDIAN LAW REPORTS ALLAHABAD SERIES
carefully examine whether the complainant
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 also a
distinction between mere breach of a
promise and not fulfilling a false promise.
If the accused has not made the promise
with the sole intention to seduce the
prosecutrix to indulge in sexual acts, such
an act would not amount to rape. 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 the misconception
created by 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.
Such cases must be treated differently. If
the complainant had any mala fide
intention and if he had clandestine motives,
it
is
a
clear
case
of
rape.
The
acknowledged
consensual
physical
relationship between the parties would not
constitute an offence under Section 376
IPC."

18. Thus, from the survey of the
aforesaid case laws, the legal position in
this regard is very clear that there is a
distinction between the rape and consensual
sex. In case of rape, besides other
categories, there is absence of will and
consent with regard to the sexual activities.
Consent should always be free and
voluntary in case of consensual sex. If
consent
is
obtained
under
the
misconception of fact in that case, consent
cannot be considered to have been giving
freely and voluntarily. There is a distinction
between false promise to marry and breach
of promise to marry. In the latter case, does
not amount to a case of rape, if the
circumstances were in the knowledge of the
prosecutorix and were beyond the control
of the accused. A false promise to marry
amounts to the case of rape, if there has
been a false promise from the inception not
to marry. Two tests are laid down under the
law to establish whether the consent is
vitiated by misconception of fact, arising
out of a promise to marriage; (i) The
promise of marriage must have been a false
promise, given in a bad faith and with no
intention of being adhered to at the time it
was being given. (ii) 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.
The
misconception of fact has to be in
approximity of time to the occurrence and
cannot be spread over a period of nine
years.

17. From bare and plain reading of
allegations made in the FIR as well as
statements recorded under Sections 161
Cr.P.C.
and
164
Cr.P.C.
of
the
prosecurtorix, the picture emerges, of
which the salient features are as follows:-

(i) Prosecutorix (first informant)
is a major lady and an active member of
BJP and indulging in political activities;

(ii) Prosecutorix (first informant)
has met the applicant no.1 in the year 200304 at the Oxford Institute while taking
tuition together with him and, thereafter,
she was in love till 2011;

(iii) Prosecutorix (first informant)
has not stated that there has been a false
promise to marry since begining/inception.

(iv) Prosecutorix herself has
admitted that both, she and applicant no.1
have accepted themselves as wife and
husband before the presiding deity in Balaji
Mandir, Meerut and she took vow before
3 All. Aruni Mittal & Ors. Vs. State of U.P. & Anr.
995
the deity as a wife of the applicant no.1.
and
established
physical
sexual
relationship.

(v) She was aware and had
knowledge that their relationship was
strongly objected and opposed by the
family members of the applicant no.1.

(vi) She mounted pressure for
solemenizing the valid marriage but the
applicant no.1 could not manage valid
marriage and kept physical and sexual
relations till 28.12.2019. Thereafter, he
maintained distance resultantly hot-talks
occurred between them.