The Allahabad High Court, recently, while dealing with an application under Section 482 of the CrPC which sought the quashing of a criminal case against a man accused of raping a girl under the false pretext of marriage, held that a longstanding consensual relationship, which had the approval of the family, would not qualify as the offence of rape under Section 375 of the IPC.

The Single Judge Bench of Justice Anish Kumar Gupta in its order stated, "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."

Continuing, the Court further observed, "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."

In the complaint, it was submitted that the victim's sister was married in Gorakhpur, where the accused/applicant first met the victim. The complaint further stated that their relationship developed over time, and the victim's family even sent the accused/applicant to Saudi Arabia when he returned, they pressured him to marry the victim but despite the pressure, the accused refused to marry her.

The victim also alleged that between 2008 and 2018, Petitioner had sexual relations with her under the promise of marriage. In 2018, the Petitioner denied marriage, and the victim, in her statement under Section 161 Cr.P.C., stated that these relations began in 2011 when she was 17 years old and continued for about 8 years, with the first encounter occurring in 2013.

On the other hand, the Applicant submitted that it was a longstanding consensual relationship between the parties, for more than eight years, which was duly approved by the parents of the victim. The applicant also relied upon the judgement of the Supreme Court in the case of Shivashankar @ Shiva vs. State of Karnataka (Criminal Appeal No. 504 of 2018), wherein it was held that "it is, however, difficult to hold sexual intercourse, which has continued for eight years, as 'rape' especially in the face of the complainant's own allegation that they lived together as man and wife."

Stating that powers under Section 482 Cr.P.C. vested in the High Court are with the purpose and objective of advancement of justice, the Court observed that it is apparent that when there is a longstanding relationship between the parties under the promise of marriage it is to be seen whether such promise of marriage was false at the inception or it is a subsequent breakdown of the relationship and refusal to marry amounts to breach of such promise, which was genuinely made at the inception of such relationship.

The Court also stated that the expression "without her consent" would comprehend an act of reason accompanied by deliberation. Concluding, the Court stated that in the present case, it is evident from the F.I.R. and statements under Sections 161 and 164 Cr.P.C. that the relationship between the applicant and the complainant was consensual and longstanding.

The Bench further observed that they had known each other for over 15 years and engaged in a physical relationship with the approval of the complainant's parents for more than 8 years, indicating her willing consent. However, the applicant later reneged on his promise to marry the complainant, leading to the filing of the F.I.R. It is clear that the promise to marry was not false initially but was disrupted by subsequent events.

Accordingly, the Court allowed the application and quashed the entire proceedings.

Cause Title: Jiyaullah v. State of U.P. and Another

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