Santhosh Kumar N.P vs State-Station House Officer
- Court
- Supreme Court
2026 INSC 1179
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. OF 2026
(Arising Out of SLP (Crl.) Nos.10173-10174 of 2025)
SANTHOSH KUMAR N.P. … APPELLANT
VERSUS
STATE-STATION HOUSE OFFICER,
KADIRUR POLICE, TELLICHERRY,
KANNUR DISTRICT & ANOTHER … RESPONDENTS
J U D G M E N T
NAGARATHNA, J.
Leave granted.
2. These criminal appeals have been preferred by the appellant
assailing the impugned common order dated 21.05.2025 passed by
the High Court of Kerala dismissing Cr. R.P. No.295/2015 and Crl.
Signature Not Verified
Digitally signed by
RADHA SHARMA M.C. No.1221/2015.
Date: 2026.10.30
15:56:48 IST
Reason:
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3. Briefly stated, the facts of the case are that respondent No.2
herein was earlier married to one Divakaran. After they were
divorced, respondent No.2 became acquainted with the appellant
herein and the acquaintance gradually matured into a personal
relationship. It is the case of respondent No.2 that appellant herein
represented himself to be a bachelor and offered to marry her. In
the year 1996, appellant and respondent No.2 travelled to Mysuru,
where they were married at a temple. They also resided together as
a married couple until the year 2003 and on the basis of the
presumption of a validly subsisting marriage, respondent No.2
consented to sexual acts with the appellant on a multitude of
occasions.
4. Thereafter, alleging neglect, respondent No.2 filed M.C.
No.3/2008 (re-registered as M.C. No.31/2009) before the Judicial
First Class Magistrate Court-IV, Kozhikode under Section 12(1) of
the Protection of Women from Domestic Violence Act, 2005
(hereinafter, “DV Act”) seeking arrangement of an alternate
accommodation for her along with certain sums of money towards
various expenses. In the proceedings before the Magistrate,
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appellant herein disclosed that he was earlier married with two
children and that on 31.08.2009, the aforesaid complaint came to
be dismissed. The criminal appeal filed against the said order of
dismissal also came to be dismissed.
5. Pursuant to this, respondent No.2 filed a private complaint
before the Additional Chief Magistrate, Thalassery under Sections
376, 420, 493, 494 and 495 of the Indian Penal Code, 1860
(hereinafter, “IPC”) against the appellant, alleging that she had
been deceived by the appellant who had claimed to be a bachelor
and had married her and that she had consented to physical
relationship on the basis of the said presumption (when he was in
fact already married to someone else). On 04.04.2011, the said
complaint came to be dismissed for non-prosecution. A revision
petition filed against the said order of dismissal is pending.
6. Respondent No.2 proceeded to file a second private complaint
before the Additional Chief Judicial Magistrate, Thalassery under
Sections 376, 420, 493, 494 and 495 of the IPC, containing similar
allegations as raised in the earlier complaint. The said second
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complaint was referred to the Kadirur Police under Section 156(3)
of the Criminal Procedure Code, 1973 (hereinafter, “CrPC”).
7. On receipt of the said complaint, FIR bearing No.503/2011
came to be registered at Kadirur Police Station, Thalassery against
the appellant for the offences punishable under Sections 376, 420,
493, 494 and 495 of the IPC.
8. Feeling aggrieved, appellant filed Crl. M.C. No.5051/2013
before the Kerala High Court under Section 482 of the CrPC
seeking quashing of the FIR No.503/2011 and all subsequent
proceedings arising therefrom. On 19.11.2013, the said petition
came to be disposed of by a Single Judge of the High Court, with a
direction to the Trial Court to dispose of the discharge application
filed by the appellant expeditiously.
9. On 09.01.2015, by way of a common order, a discharge
petition preferred before the Court of Addl. District and Sessions
Judge, Thalassery along with an application challenging the
territorial jurisdiction of the Trial Court by the appellant came to
be dismissed on the basis of the existence of a prima facie case and
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sufficient materials to substantiate the allegations made against
the appellant. An application filed by the appellant seeking further
investigation into the complaint filed by respondent No.2 also came
to be dismissed.
10. Appellant preferred Crl. R.P. No.295/2015 against the
aforesaid common order dated 09.01.2015 and Crl. M.C
No.1221/2015 against the order of dismissal of the application
seeking further investigation before the Kerala High Court. Both
of these were heard and disposed of by way of a common order. By
order dated 21.05.2025, the High Court dismissed both Crl. R.P.
No.295/2015 and Crl. M.C. No.1221/2015. The High Court upheld
the finding of the Trial Court as regards the existence of a prima
facie case. That the appellant herein had misrepresented himself
to be a bachelor and had induced respondent No.2 to believe that
she was in a legally subsisting marriage and to consent to sexual
acts on the basis of the said belief. That under Section 376, consent
given under a misconception of fact would amount to rape. That
the mere factum of continuous cohabitation for six years would not
nullify the initial fraudulent inducement. It was observed that the
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Trial Court’s appreciation of materials such as the statements of
respondent No.2 as well as appellant’s legally wedded wife, bank
statements, income tax records among other materials supported
the case of the prosecution sufficiently. That the request of the
appellant for further investigation was merely a delay tactic and
was without merit. Finally, that prior proceedings did not act as a
bar against the institution of a subsequent complaint and that the
High Court had earlier declined to intervene in an application
seeking quashing of the FIR.
11. Hence, the instant criminal appeals.
12. This Court, vide order dated 18.07.2025 issued notice in the
instant appeals and granted stay of further proceedings in S.C.
No.371/2013.
13. We have heard learned senior counsel, Sri R. Basant for the
appellant and learned AOR, Sri K. Rajeev for respondent No.2
herein.
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14. Learned senior counsel appearing for the appellant submitted
that respondent No.2 herein is a lady presently aged 64 years of
age and has been involved in politics. That she fully possessed
sufficient maturity to understand the nature of the relationship
between herself and the appellant herein.
15. That the appellant and respondent No.2 were in a consensual
relationship and cohabited for nearly seven years between 1996 to
2003. That criminal proceedings came to be initiated under the DV
Act a whole five years after the end of their relationship, which
came to be dismissed on the basis of insufficient proof of the
existence of a marriage between the appellant and respondent
No.2.
16. It was submitted that an earlier complaint of a similar nature
had been dismissed for non-prosecution. That it was only on the
basis of suppression of the earlier complaint that a second
complaint of an identical nature was filed.
17. It was further contended that respondent No.2 herself had, in
the earlier proceedings under the DV Act, recorded that the brother
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of the appellant had informed her within nine months of the alleged
marriage between herself and the appellant that the latter was
already married. That despite knowing that she would never attain
the status of the legally wedded wife of the appellant, respondent
No.2 continued to cohabit with him and their relationship
continued. Thus, the notion that any consent for sexual acts was
thus obtained on the basis of deception and misrepresentation of
the matrimonial status of the appellant herein is entirely baseless.
18. It was submitted that in the earlier proceedings under the DV
Act, respondent No.2 herein was unable to even identify the temple
in which the marriage had taken place in 1996 and not a single
witness could be examined to prove the existence of the said
marriage.
19. That as a result, the continuation of the criminal proceedings
was a mere abuse of the process of law and the same was initiated
to exact revenge against the appellant and to pressurise him
financially. That none of the ingredients of Sections 376, 420, 493,
494 and 495 of the IPC can remotely be said to have been made
8
out. That at best, the given factual matrix reveals a consensual
relationship between the appellant and respondent No 2. Therefore,
the High Court ought to have allowed the petitions filed by the
appellant herein by setting aside the order of the trial court.
20. Per contra , learned counsel for respondent No.2 contended
that there was no bar against a second complaint being filed by
respondent No.2 herein, as the first complaint had not been
dismissed on merits but for non-prosecution. That the second
complaint was not received as a private complaint, as it was
referred for police investigation under Section 156(3) of the CrPC.
As a result, it is on the basis of the subsequent investigation and
filing of chargesheet that criminal proceedings were ongoing as
against the appellant herein, as opposed to merely the existence of
respondent No.2’s complaint.
21. It was further contended that the relationship was not one of
a consensual nature despite respondent No.2 being aware of the
appellant’s earlier marriage. That appellant and respondent No.2
had cohabited for several years on the strength of appellant’s
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reassurances that he was not married and that his brother was
also not telling the truth regarding appellant already being married.
That the belief of respondent No.2 in the validity of the marriage is
further exemplified in her undergoing IVF treatment, wherein
appellant himself had signed as the “husband”. That there is a
rental/lease agreement for the property in Mysuru where
respondent No.2 resided that bears the signature of the appellant.
That appellant and respondent No.2 further held a joint Post Office
savings account. That these materials further corroborate the
absolute nature of the belief in the appellant held by respondent
No.2.
22. It was also submitted that delay in filing the complaint could
be explained by the fact that respondent No.2 was deliberately
isolated in Mysuru and was not allowed to travel anywhere or
contact anyone. That the ingredients of all of the offences
mentioned in the FIR, namely Sections 376, 420, 493, 494 and 495
of the IPC were all clearly made out in the instant case. Hence,
there is no merit in these appeals.
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23. We have given our thorough consideration to the arguments
advanced at the Bar and in light of the material on record.
24. Having heard learned counsel for the respective parties and
upon perusal of the material placed on record, the only question
that arises for our consideration is whether the allegations
contained in FIR No.503 of 2011 disclose sufficient material to
warrant the continuance of criminal proceedings as against the
appellant herein or whether he is liable to be discharged.
25. At this stage, it would be apposite to refer to the relevant
provision under the CrPC:
“227: Discharge
If, upon consideration of the record of the case and the
documents submitted therewith, and after hearing the
submissions of the accused and the prosecution in this
behalf, the Judge considers that there is not sufficient
ground for proceeding against the accused, he shall
discharge the accused and record his reasons for so
doing.”
26. In Union of India vs. Prafulla Kumar Samal, (1979) 3 SCC
4 (“Prafulla Kumar Samal”) , a two-Judge Bench of this Court
observed as follows:
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“10. Thus, on a consideration of the authorities mentioned
above, the following principles emerge:
(1) That the Judge while considering the question of
framing the charges under section 227 of the Code has the
undoubted power to sift and weigh the evidence for the
limited purpose of finding out whether or not a prima facie
case against the accused has been made out:
(2) Where the materials placed before the Court disclose
grave suspicion against the accused which has not been
properly explained the Court will be fully justified in
framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay
down a rule of universal application. By and large however
if two views are equally possible and the Judge is satisfied
that the evidence produced before him while giving rise to
some suspicion but not grave suspicion against the
accused, he will be fully within his right to discharge the
accused.
(4) That in exercising his jurisdiction under section 227 of
the Code the Judge which under the present Code is a
senior and experienced Judge cannot act merely as a Post
office or a mouth-piece of the prosecution, but has to
consider the broad probabilities of the case, the total effect
of the evidence and the documents produced before the
Court, any basic infirmities appearing in the case and so
on. This however does not mean that the Judge should
make a roving enquiry into the pros and cons of the matter
and weigh the evidence as if he was conducting a trial.”
27. In Sajjan Kumar vs. Central Bureau of Investigation,
(2010) 9 SCC 368 (“Sajjan Kumar”) , placing reliance on Prafulla
12
Kumar Samal this Court reiterated and elaborated upon the
parameters in terms of which the powers under Section 227 of
CrPC could be exercised.
“21. On consideration of the authorities about the scope
of Section 227 and 228 of the Code, the following principles
emerge:-
(i) The Judge while considering the question of framing
the charges under Section 227 of the Cr.P.C. has the
undoubted power to sift and weigh the evidence for the
limited purpose of finding out whether or not a prima facie
case against the accused has been made out. The test to
determine prima facie case would depend upon the facts
of each case.
(ii) Where the materials placed before the Court
disclose grave suspicion against the accused which has
not been properly explained, the Court will be fully
justified in framing a charge and proceeding with the trial.
(iii) The Court cannot act merely as a Post Office or a
mouthpiece of the prosecution but has to consider the
broad probabilities of the case, the total effect of the
evidence and the documents produced before the Court,
any basic infirmities etc. However, at this stage, there
cannot be a roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting a
trial.
(iv) If on the basis of the material on record, the Court
could form an opinion that the accused might have
committed offence, it can frame the charge, though for
conviction the conclusion is required to be proved beyond
reasonable doubt that the accused has committed the
offence.
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(v) At the time of framing of the charges, the probative
value of the material on record cannot be gone into but
before framing a charge the Court must apply its judicial
mind on the material placed on record and must be
satisfied that the commission of offence by the accused
was possible.
(vi) At the stage of Sections 227 and 228, the Court is
required to evaluate the material and documents on record
with a view to find out if the facts emerging therefrom
taken at their face value discloses the existence of all the
ingredients constituting the alleged offence. For this
limited purpose, sift the evidence as it cannot be expected
even at that initial stage to accept all that the prosecution
states as gospel truth even if it is opposed to common
sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise
to suspicion only, as distinguished from grave suspicion,
the trial Judge will be empowered to discharge the accused
and at this stage, he is not to see whether the trial will end
in conviction or acquittal.”
28. A perusal of the aforesaid judgements of this Court reveal that
what is required of the concerned court at the stage of discharge
under Section 227 of the CrPC is a limited examination of the
material on record to ascertain if a prima facie case is made out
against the accused or not. While this can involve a consideration
of the evidence, such consideration cannot translate to a sweeping
probe of such evidence akin to the conduct of a pre-trial. It cannot
also mean deference to the prosecution’s version of events and
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must involve the due consideration of other possibilities put forth
by the accused. What is truly being evaluated at the stage of
discharge is the probability or likelihood that the offence has been
committed by the accused. It is not the higher standard of the
offence having been committed beyond reasonable doubt that is
required for conviction.
29. The aforementioned principles elucidate that if the material
on record discloses that such commission of an offence was
probable or likely, the case would likely not be a fit one for
discharge. Such a determination is necessarily fact-specific and it
is for the Judge to apply their mind to determine, as to, whether,
such a probability warrants the continuance of criminal
proceedings against the accused or if such probability is weak or
non-existent enough that discharge would be justified.
30. While such a determination is straightforward in cases where
the probability of the commission of an offence by the accused
therein is either very strong or very weak/non-existent, what is a
more nebulous inquiry is in cases where neither is the case and it
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would be possible to both identify scenarios that would make the
commission of the offence both probable or improbable by the
accused therein. No threshold as such can be laid down as to how
improbable the version of events should be to operate as grounds
for discharge. It is an individuated act of reasoning that may be
guided, but not made subject to precise constraints.
31. Upon an examination of the material on record, we are of the
opinion that the instant case is a fit one for discharge of the
appellant herein for the reasons set out hereunder.
32. On perusal of the FIR of the instant case, it is noted that
respondent No.2-complainant has filed the FIR invoking Sections
376, 420, 493, 494 and 495 of the IPC.
33. An offence of rape if established in terms of Section 375 is
punishable under Section 376 of the IPC. In the present case, sub-
section (2)(n) of Section 376 is relevant which is set out below :
“376: Punishment for rape. —
(1) Whoever, except in the cases provided for in sub-
section (2), commits rape, shall be punished with rigorous
imprisonment of either description for a term which shall
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not be less than ten years, but which may extend to
imprisonment for life, and shall also be liable to fine
(2) Whoever,—
xxx
(n) commits rape repeatedly on the same woman,
shall be punished with rigorous imprisonment for a term
which shall not be less than ten years, but which may
extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural
life, and shall also be liable to fine.”
34. The other Sections are extracted hereunder:
“420. Cheating and dishonestly inducing delivery of
property.—
Whoever cheats and thereby dishonestly induces the
person deceived to deliver any property to any person, or
to make, alter or destroy the whole or any part of a valuable
security, or anything which is signed or sealed, and which
is capable of being converted into a valuable security, shall
be punished with imprisonment of either description for a
term which may extend to seven years, and shall also be
liable to fine.
xxx
493. Cohabitation caused by a man deceitfully
inducing a belief of lawful marriage.—
Every man who by deceit causes any woman who is not
lawfully married to him to believe that she is lawfully
married to him and to cohabit or have sexual intercourse
with him in that belief, shall be punished with
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.
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494. Marrying again during lifetime of husband or
wife.—
Whoever, having a husband or wife living, marries in any
case in which such marriage is void by reason of its taking
place during the life of such husband or wife, shall be
punished with imprisonment of either description for a
term which may extend to seven years, and shall also be
liable to fine.
Exception - This section does not extend to any person
whose marriage with such husband or wife has been
declared void by a Court of competent jurisdiction,
nor to any person who contracts a marriage during the life
of a former husband or wife, if such husband or wife, at
the time of the subsequent marriage, shall have been
continually absent from such person for the space of seven
years, and shall not have been heard of by such person as
being alive within that time provided the person
contracting such subsequent marriage shall, before such
marriage takes place, inform the person with whom such
marriage is contracted of the real state of facts so far as
the same are within his or her knowledge.
495. Same offence with concealment of former
marriage from person with whom subsequent marriage
is contracted.—
Whoever commits the offence defined in the last preceding
section having concealed from the person with whom the
subsequent marriage is contracted, the fact of the former
marriage, shall be punished with imprisonment of either
description for a term which may extend to ten years, and
shall also be liable to fine.”
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35. In the present case, the issue that had to be addressed by the
High Court was, whether, assuming all the allegations in the FIR
and chargesheet are correct as they stand, the appellant is likely
to have committed the offences or not.
36. We do not understand as to how the allegations against the
appellant herein could be brought within the scope and ambit of
the aforesaid provisions. Taking the allegations in the FIR and the
charge-sheet as they stand, the crucial ingredients of the offences
under Sections 376, 420, 493, 494 and 495 of the IPC are entirely
absent. The instant case is one wherein the probability of the
commission of the said offences by the appellant is entirely non-
existent.
37. Section 376(2)(n) of the IPC, which is the relevant part of the
provision to the case at hand, provides for enhanced punishment
in cases where rape is committed repeatedly on the same woman.
It mandates rigorous imprisonment for a term not less than ten
years, which may extend to life imprisonment for the remainder of
the person’s natural life. The object of this provision is to address
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aggravated instances of sexual assault where the act is not a one-
time incident but has occurred repeatedly on the same victim. The
expression “repeatedly” employed in the aforesaid provision is not
without weight. It denotes a scenario wherein sexual assault is
committed at different points of time. Courts have consistently
interpreted this phrase to mean a series of acts that are separate
in nature and not the continuation of a single transaction.
38. In genuine cases under Section 376(2)(n), the pattern is
usually unmistakable; it is an initial act of sexual assault, followed
by multiple acts under threat of fear, pressure, captivity, or
continued deceit, often when the woman is rendered vulnerable
and unable to escape the situation.
39. In the instant case, a bare perusal of the First Information
Report and the statements on record reveal that appellant herein
and respondent No.2 had cohabited together between the years
1996 to 2003, after what is described as a marriage ceremony in
Mysuru. Despite respondent No.2 being made aware of the prior
marriage of the appellant early on, she voluntarily continued to
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reside with him. On a multitude of occasions during this period,
she claims to have consented to sexual acts.
40. The real question, therefore, for determination is, whether,
the appellant established physical relationship with the respondent
No.2 that was procured by deception or a false promise.
41. The allegation of rape hinges entirely on respondent No.2’s
claim that she consented to the sexual relationship only because
she was under a misconception that she had been validly married
to and was the legally wedded wife of the appellant. The appellant
does not deny existence of such a physical relationship but
contends that the same was entirely consensual.
42. Respondent No.2 does not also deny the fact that she was
made aware of the pre-existing marriage of the appellant within a
few months of cohabiting with him from his brother. Considering
this, it is untenable and incredulous that she continued to believe
herself to be appellant’s legal wife solely on the basis of his alleged
oral reassurances to the contrary. The case at hand is evidently
one of consensual relationship that perhaps was camouflaged in a
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marriage for the sake of avoiding scrutiny or stigma, which
eventually came to an end. The mere factum of the relationship
having turned sour and acrimonious cannot on its own convert
earlier incidences of consent to sexual acts into offences of rape.
Such a conclusion would be putting the cart before the horse,
predicating the prior act of consent on the outcome of the
relationship itself into an offence.
43. We wish to note a worrying trend in recent years wherein
consensual relationships that have come to an end are
retrospectively combed with a fine tooth so as to identify what can
post-facto be construed as violence and sexual assault. There is
thus a need to distinguish between an absence of consent in its
entirety because of it having been built entirely on a mirage of
deceit and falsehood at the outset on the one hand from the
experiencing of regret over having consented to past sexual acts,
owing to the later demise of the relationship. While the latter
scenario is unfortunate, such hindsight on its own cannot
constitute a consensual relationship as a crime and set the gears
of the criminal justice system into motion in a manner that
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deprives the accused of his liberty and reputation. In fact, such an
approach denudes the man of any agency entirely, as the mere
factum of being in a consensual relationship at one point would
bind him to it entirely for fear of being accused of rape at a
subsequent point of time.
44. In such a scenario, can it be said that the man had no right
to withdraw from the relationship? Can such a decision be termed
as deceit or fraud? Clearly not. In such cases, physical intimacy
that occurred during the currency of a functioning relationship
cannot be retrospectively branded as acts of rape merely because
the relationship soured and no longer subsists.
45. This Court has time and again witnessed the disturbing trend
where failed relationships are being converted into criminal cases.
Rape, being a heinous offence, must be reserved for situations
where there is real sexual violence, coercion, or manipulation of
consent. When every consensual relationship which sours is
converted into an accusation of rape, it not only dilutes the gravity
of the offence alleged or rather negates the very allegation of crime.
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It also subjects the accused to irreparable stigma, harassment and
injustice. This is not merely a matter of personal dispute. The
abuse of the criminal justice process in such cases is a matter of
serious concern and must be condemned. Hence, courts would
have to view the entire relationship holistically rather than from
the perspective of its end.
46. At this juncture, this Court must also sound a note of caution.
Rape is an offence that strikes at the core of a woman’s bodily
autonomy and dignity. It continues to be heavily underreported
and victims are encouraged to choose silence so as to protect their
and their family’s honour and reputation over seeking justice. For
every case where the provisions related to rape are misused, there
are several cases that never see the light of day. We must
emphasise that genuine cases must be pursued with vigour where
the facts clearly show sexual assault and violence. But equally, the
justice system must not be turned into a tool of vengeance when
relationships fail. The legislature has never intended that
consensual sexual acts between adults occurring during a
mutually affectionate relationship, to be retrospectively
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criminalised merely because the relationship came to an end. It is
unfortunate that despite judicial deprecation, this trend is
increasing, and it is a matter of concern for the courts as often
settlement of disputes comes with huge monetary considerations
to be borne by the male accused.
47. In the facts of the present case, in our view, the materials do
not support an inference of rape. The relationship was consensual
between two adults. The acts were not forced. The appellant merely
decided, for reasons best known to him, to withdraw from the
relationship which was claimed to be in the nature of a marital
relationship. The repeated sexual acts were part of the ongoing
relationship and cannot be severed from it artificially to bring them
under Section 376(2)(n).
48. Hence, we find that the ingredients of Section 376(2)(n) are
not made out in the instant case. To allow such a prosecution to
continue would amount to a misuse and abuse of criminal law and
would set a dangerous precedent where a failure in a relationship
is criminalised and individuals are driven into litigation for matters
25
that are essentially personal in nature. Society and courts must
discourage the weaponisation of criminal law in the aftermath of
an emotional discord between two consenting adults.
49. Coming to the offence under Section 420 of the IPC, the said
offence penalises cheating that dishonestly induces another person
to either (i) deliver any property to any person, (ii) make, alter or
destroy the whole or any part of any valuable security, or anything
which is signed or sealed and which is capable of being converted
into a valuable security. The said offence is punishable with up to
seven years of imprisonment and payment of fine. The key
ingredient of the said offence is thus not merely cheating in the
form of some manner of deceit but the said deceit inducing some
person to take further steps regarding property or valuable
securities.
50. There is nothing on record whatsoever to substantiate the
aforesaid allegation. Nowhere is there a whisper of the appellant
having, by way of deceit, caused respondent No.2 to deliver any
property to any person. Neither are there any allegations that, due
26
to the alleged deceit of the appellant, respondent No.2 has made,
altered or destroyed the whole or any part of any valuable security,
or anything which is signed or sealed and capable of being
converted into a valuable security. The phrase “valuable security”,
as defined under Section 30 of the IPC, clearly refers to a legal
document that creates, extends, transfers, restricts, extinguishes
or releases some right in favour of a person or where a person
acknowledges a legal liability or the absence of a right.
51. Even if the allegation that respondent No.2 was deceived into
believing that she was the legally wedded wife of the appellant is
taken at its face value, there is nothing to suggest that this belief
led her to part with any property or create or modify some valuable
security. No property was delivered by respondent No.2 to anyone
and no valuable security was either made, destroyed or modified
by respondent No.2.
52. Sections 493, 494 and 495 of the IPC will be addressed in
conjunction. Under Section 493 of the IPC, a man who, by deceit,
causes a woman who is not lawfully married to him to believe that
27
she is, in fact, his legal wife and to cohabit and/or engage in sexual
intercourse with him would be liable to be punished with
imprisonment up to seven years and payment of fine. A plain
reading of the provision reveals the following constituent elements
that must be satisfied, namely that (i) the man must make use of
deceitful means to (ii) convince a woman who is not lawfully
married to him otherwise that (iii) she is lawfully married to him
and (iv) to cohabit with her and/or engage in sexual intercourse
with her on this pretext.
53. In the facts of the instant case, it is evident that there was
continued cohabitation on the part of respondent No.2 even after
coming to know of the existence of the appellant’s earlier marriage
and having two children. Thus, there is no possibility that
respondent No.2 could have been cohabiting on the premise that
she was the legally wedded wife of the appellant. The mere alleged
performance of some rituals at a temple per se , in light of having
received information regarding the appellant’s earlier marriage,
could not have given rise to any assumption of lawful marriage on
the part of respondent No.2. She has admitted that having come to
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know of this information within six months of her cohabitation with
the appellant, i.e, in the year 1996 and despite this knowledge, she
made no attempt to withdraw from the company of the appellant.
This conduct is highly suggestive of the consensual nature of the
relationship between the appellant and respondent No.2, that it
was not in the nature of any legally recognised marriage. The said
relationship subsisted, despite awareness of the appellant’s earlier
marriage.
54. There is further no material on record to indicate that the
appellant deceitfully induced respondent No.2 to marry him on the
basis of her being his legally wedded wife. While some rituals are
alleged to have taken place at a temple, respondent No.2 has been
unable to sufficiently make out a prima facie case that these were
in the nature of a bona fide marriage. Most of the materials placed
on record, such as signatures on documents relating to IVF
treatments, joint bank accounts etc. do not on their own imply the
existence of any sort of a marriage, instead they only suggest the
existence of a long-standing personal relationship.
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55. Similarly, under Section 494, the provision penalises the
entering into of a subsequent marriage during the lifetime of the
first spouse, which is void, with imprisonment of up to seven years
and payment of fine. Exceptions are when the earlier marriage itself
was declared void or if the first spouse has been absent for seven
years. Section 495 penalises the entering into of such a second
marriage during the lifetime of the first spouse when the existence
of the earlier marriage is deliberately concealed from the
subsequent spouse, with imprisonment of up to ten years and
payment of fine.
56. The ingredients of both the aforesaid offences have not been
made out in the instant case. The relationship between the
appellant and the respondent No.2 was more akin to a domestic
relationship, possibly in the nature of a marriage, as opposed to a
real marriage in the eyes of law. Respondent No.2, when queried in
the proceedings under the DV Act, was entirely unable to recollect
the name of the temple in which the marriage had taken place,
despite having lived in Mysuru for an extended period of time.
While respondent No.2 claims that she was taken to the temple by
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the appellant and a thali/mangalsutra was tied, there is no further
information provided if any other rituals required to make a Hindu
marriage valid, had been carried out. The statement of the priest of
the temple also merely states that a marriage was performed by
him between the appellant and respondent No.2 with no further
details being provided. While the aforesaid ceremony may have
been carried out with some manner of intention to effectuate a
marriage, in the absence of further conclusive evidence, it cannot
be said that, prima facie , any valid marriage was in subsistence
between the parties. Further, as discussed earlier, respondent No.2
was fully aware of the existence of the appellant’s earlier marriage
and having two children. Having been informed by the appellant’s
own brother of the same merely six months after the purported
“marriage”, she sought not to make any further enquiries and
continued to cohabit with the appellant for seven more years.
57. After the cessation of the relationship between respondent
No.2 and the appellant in 2003, after a lapse of five years in the
year 2008, proceedings came to be instituted under the DV Act.
Following the dismissal of the said proceedings, respondent No.2
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attempted to file two almost identical complaints against the
appellant herein, the second of which culminated in the filing of
FIR No.301/2011 and all subsequent proceedings arising
therefrom.
58. While it is indubitably true that in a country like ours, where
social and cultural values place a significant premium on the
institution of marriage, a woman may repose complete faith in her
partner and consent to physical intimacy on the assurance that
such a relationship is either a precursor to a legally and socially
sanctioned union or formed on the explicit basis of such a union.
Marriage itself then forms the very substratum of her decision to
engage in a sexual relationship, making her consent conditional on
the belief in its validity.
59. It is conceivable that such consent may stand vitiated if it is
subsequently revealed that the woman was genuinely kept in the
dark entirely about the true nature of her marriage, and that the
husband had been married earlier, entirely unknown to her. There
are certainly such genuine cases where trust is betrayed and
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dignity is compromised, lest the protective mantle of Section 376
along with Sections 493, 494 and 495 of the IPC would be rendered
illusory for women who are truly wronged. However, the application
of this principle must be guided by facts and evidence in each case,
and not by mere allegations or moral presumptions.
60. It is trite to reiterate at this stage that this Court has not been
entrusted to pass moral judgement on the varying exercises of free
choice, autonomy and agency by individuals in the country. Adult,
men and women may freely make decisions that are wise or unwise,
prudent or reckless and considerate or callous. These decisions
would necessarily be accompanied by consequences, perhaps in
the form of undesirable outcomes or unexpected possibilities, some
even deeply hurtful. None of this would, however, transform these
decisions and their resulting circumstances automatically into
criminal offences requiring the intervention of the State apparatus.
Criminal law cannot be used as munitions to settle personal
scores, exact revenge or coerce an individual to act in any
particular way.
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61. As demonstrated in the above analysis, the facts as they
stand, which are not in dispute, indicate that the ingredients of the
offences under Sections 376, 420, 493, 494 and 495 of the IPC are
not established. Prima facie , we hold that no case is made out
against the appellant of having committed the said offences. In our
view, the High Court erred in concluding that there was sufficient
material to make out a prima facie case against the appellant and
therefore, proceeded to dismiss the petitions filed against the order
of the Trial Court on a completely misconceived basis.
62. On a careful consideration of the aforementioned facts and
judicial dicta, we find that none of the offences alleged against the
appellant herein is made out and that it is not at all probable that
the appellant herein has committed the said offences. Therefore,
the principles elucidated in the judgments of this Court in the
cases of Prafulla Kumar Samal and Sajjan Kumar extracted
above, squarely apply to the facts of this case. It is neither
expedient nor in the interest of justice to permit the present
prosecution to continue.
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63. In the circumstances, we find that the Trial Court as well as
the High Court ought to have discharged the appellant herein
rather than holding that the appellant has to face the trial.
64. Consequently, the application filed by the appellant herein
seeking discharge is allowed by setting aside the impugned order
of the High Court as well as the orders of the Trial Court. The
appellant is discharged from the offences alleged against him.
65. The appeals are allowed in the aforesaid terms.
………………………………J.
(B.V. NAGARATHNA)
……………..……………….J.
(R. MAHADEVAN)
NEW DELHI;
OCTOBER 30, 2026.
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