Prosecutrix Was Married Yet Maintained Sexual Relations With Another Married Man: Kerala High Court Quashes Rape FIR

The Kerala High Court on Monday quashed criminal proceedings against a married man, who was alleged to have committed rape on a married woman. 

Justice K. Babu observed that in the present case, the prosecutrix (2nd respondent herein) was a married woman with children, and aware that the petitioner accused was also married. The Court noted that despite the same, she maintained sexual relations with the petitioner on many occasions. 

"It is difficult to conclude that the prosecutrix had not given consent for the sexual relationship with the petitioner under any misconception of facts so as to hold that the petitioner is guilty of having committed rape within the meaning of Section 375 of IPC," the Court thus noted. 

The second respondent was in love with the petitioner, who is also a married man and the father of a child. She averred that although she wanted to stop the relationship, the petitioner wanted to maintain the same, and allegedly threatened to commit suicide if she proceeded to end their relationship. The Police, after conducting investigation into the matter, booked the under Section 376(1) of IPC [Punishment for Rape].

The petitioner filed the present petition seeking to quash the entire criminal proceedings on the ground that the parties had settled their disputes. The 2nd respondent also, on her part, filed an affidavit stating that she has settled her dispute with the petitioner and did not wish to proceed with the criminal prosecution against him. The 2nd respondent further requested to 'be saved from the agony of facing a criminal trial'. 

At the very outset, the Court perused the Apex Court decisions in Gian Singh v. State of Punjab (2012), Narinder Singh & Ors. v. State of Punjab (2014), State of Madhya Pradesh v. Laxmi Narayan & Ors. (2019) , and Kapil Gupta v. State of NCT of Delhi & Anr. (2022), wherein it was held that although Courts ought to be slow in quashing the proceedings wherein heinous and serious offences are involved, the High Court would not be foreclosed from examining as to whether there exists material for incorporation of such an offence or as to whether there is sufficient evidence which if proved would lead to proving the charge for the offence charged with. 

The Court noted that the present case revealed that the alleged incidents of sexual relationship occurred based on consent between the parties, and it would not thus constitute the required ingredients of the offence as alleged as per Section 375 of IPC, which is punishable under Section 376 IPC.

It thus found that the criminal proceedings against the petitioner were liable be quashed by invoking the inherent power of the Court under Section 482 Cr.P.C. It was added that the further continuance of the case would amount to an abuse of the process of the Court. 

"In the result, the Crl.M.C. is allowed. All further proceedings in C.P.No.61 of 2017 on the file of the Judicial First Class Magistrate’s Court-II, Hosdurg stand hereby quashed," the Court observed while disposing the case. 

The petitioner accused was represented by Advocates T. Madhu and C.R. Saradamani. Public Prosecutor Sangeetha Raj and Advocate A. Manikandan appeared on behalf of the respondents. 

Case Title: Kripesh Krishnan v. State of Kerala & Anr. 

Citation: 2023 LiveLaw (Ker) 290 

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