Jammu & Kashmir High Court Quashes Rape FIR, Says Proposal For Live-In To Ascertain How Relationship Will Work Out Not False Promise To Marry

The bench comprising Justice Sanjay Dhar observed,

"He proposed to have live-in-relationship with her, meaning thereby that at the initial stage the petitioner had not indicated his intention to marry the prosecutrix but he only wanted to ascertain as to how their relationship will work out, whereafter he was to make up his mind as to whether or not he would enter into wedlock with the prosecutrix. This goes on to show that there was no promise of marriage from the petitioner at the time of initiation of their relationship"

The Petitioner was being prosecuted under Sections 376(Rape), 420(Cheating) and 506(Criminal Intimidation) of RPC. The complainant alleged that petitioner-accused had expressed his desire to marry her and in order to understand each other in a much better and efficient manner he had proposed that they should start living together in a live-in relationship. However, later, the petitioner expressed his inability to marry her as he was under family pressure.

The petitioner contended that the facts emanating from the record would clearly show that there was a long standing relationship between the petitioner and the prosecutrix, which has gone wrong but the same cannot amount to an offence under Section 376 IPC.

At the outset, Justice Dhar observed that once the prosecutrix came to know that the family of the petitioner is not in favour of their marriage and live-in-relationship, prudence demanded that she, a mature girl of 38 years, should not have allowed the petitioner to stay with her and to have physical relationship with her.

The bench added, "The prosecutrix has admitted that the petitioner wanted to have sometime before entering into wedlock with her and for this purpose she proposed to have live-in-relationship with her."

The bench also deliberated on the contours of term "consent" under Section 90 IPC and its applicability to Section 375 IPC. It observed,

"Consent as required under Section 375 IPC, means an active understanding of the circumstances, actions and consequences thereof and a person, who makes a choice after evaluating all the facts and circumstances and the possible consequences of such actions, consents to such an action", the bench underscored.

Differentiating it as a case of consensual sex and not a case of false promise to marry, the court allowed the petition and quashed the FIR and the proceedings against the petitioner.

Case Title: Syed Shahid Hamdani Vs UT of J&K.

Citation: 2023 (JKL) 45

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