While taking a quantum leap in the right direction, the Jammu and Kashmir and Ladakh High Court in the fitness of things in a learned, laudable, landmark and latest judgment titled Syed Shahid Hamdani Vs UT of J&K and another in Bail App No. 109/2021 c/w CRM(M) c/w CRM(M) No. 274/2021 (O&M) that was reserved on February 21, 2023 and then finally pronounced on March 2, 2023 has quashed a rape FIR. The Court observed that a proposal made by the accused to prosecutrix for live-in relationship so as to ascertain how their relationship will work, does not tantamount to false promise to marry. The Court thus while rightly differentiating it as a case of consensual sex and not a case of false promise to marry allowed the petition and quashed the FIR and the proceedings against the petitioner.

At the very outset, this notable judgment authored by the Single Judge Bench of Hon’ble Mr Justice Sanjay Dhar of Jammu and Kashmir and Ladakh High Court sets the ball in motion by first and foremost putting forth in para 1 that:
In the instant petition, the petitioner has challenged FIR No. 53/2021 for offences under Sections 376, 420 and 506 of RPC registered with Police Station, Bahu-Fort, Jammu.

To recapitulate, the Bench while dwelling on the sequence of events then states in para 2 that:
If appears that the complainant, respondent No. 2 approached the Judicial Magistrate 1st Class (Munsiff), Jammu with an application under Section 156(3) Cr.P.C. seeking a direction upon the SHO, Police Station, Trikuta Nagar, Jammu to register an FIR and investigate the case. Vide order dated 03.02.2021, passed by the learned Magistrate, the SHO, Police Station, Bahu Fort, Jammu was directed to register FIR against the petitioner and to carry out the investigation. It would be profitable to reproduce the relevant extracts of the complaint as under:

2. That the applicant came in contact with one Shahid Hamdani in the month of June 2017 and both the parties having similarities in temperaments and mutual understandings started meeting each other frequently. During this time both the parties developed feelings for each other and accordingly expressed their mutual feelings to each other.

3. That said Shahid Hamdani expressed his desire to marry the applicant and in order to understand each other in a much better and efficient manner the said Shahid Hamdani proposed that they should start living together in a live-in relationship. The applicant was not initially opened to this suggestion and asked him that instead of living in a live-in relationship they should get married to each other. However the said Shahid Hamdani needed some time to get settled in his carrier and till that time the parties start living together in a live-in relationship in the house of applicant situated at Jalalabad,Sunjwan, Jammu.

4. That the parties reside together without any disturbance from any person till February 2019 and thereafter, he went back to his native palace. During this time the parties were in constant contact with each other and he assured that he will persuade his family for the marriage with the applicant. However despite the various attempts, the family of the said Shahid Hamdani that they will eliminate both of them as their marriage is not acceptable to them.

5 That the things became worse when the family members of the accused came to know that the applicant and said Shahid Hamdani were living together in a live-in relationship. The said family members of the accused openly extended threats to the applicant, that they will eliminate the applicant in case she insisted for marriage with Shahid Hamdani. However, despite all the odds the applicant as well as Shahid Hamdani decided to get marry with each other and date of marriage was decided in the second week of October 2019. The said Shahid HamdanI was supposed to meet the applicant on 04.10.2019 at Jammu. However he never reached Jammu and there is no information about the well being of said Shahid Hamdani.

6 That thereafter the applicant unaware of the nefarious designs of the accused filed a Habeas Corpus Petition in the Hon’ble High Court of J&K seeking production of the said accused. However, the accused again appeared before the applicant and expressed her inability to marry him as he was under family pressure. He again assured that he will marry the applicant in the month of November 2020 and thereafter started visiting the applicant again at her residence situated at Sunjwan where he again developed physical relation with the applicant.

7 That thereafter he never kept his promise of marriage and in the month of January 2021 met the applicant and told her that he never intended to marry her and in case the applicant will file any case he will eliminate her and also circulate her photos and videos on social media….

Do note, the Bench notes in para 7 that:
The scope and powers of the High Court under Section 482 of Cr.P.C is by now well settled by various judgments of the Supreme Court on the subject. In State of Haryana vs. Bhajan Lal, 1999 Supp (1) SCC 335, it has been held that powers under Section 482 Cr.P.C to quash criminal proceedings should be exercised with circumspection only in deserving cases, but nonetheless the Supreme Court has recognized the powers of the High Court to quash the criminal proceedings by taking resort to the jurisdiction under Section 482 of Cr.P.C. One of the parameters laid down by the Supreme Court in the said case, which is relevant to the instant case is where the allegations made in the FIR, even when they are taken at their face value and accepted in their entirety do not prima facie constitute any offence, the High Court would be within its jurisdiction to quash the FIR and the proceedings emanating therefrom. These principles have been reiterated and re-affirmed by the Supreme Court it its later judgments, the latest being M/s Neeharika Infrastructure vs the State of Maharashtra 2021 SCC online SC 315.

Quite ostensibly, the Bench holds in para 8 that:
From the above analysis of law on the subject, it is clear that if, this Court comes to a conclusion that the allegations made in the complaint/FIR lodged by respondent No. 2/complainant do not make out a case against the petitioner then the same deserves to be quashed or else the petition is required to be dismissed.

While citing the most relevant case law, the Bench mentions in para 17 that:
In Shivashankar vs. State of Karnataka, (2019) 18 SCC 204, the Supreme Court while dealing with a case of relationship that had continued for about eight years held that it is not a case of rape and observed as under:

4.In the facts and circumstances of the present case, it is difficult to sustain the charges leveled against the appellant who may have possibly, made a false promise of marriage to the complainant. It is, however, difficult to hold sexual intercourse in the course of a relationship 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.

To put things in perspective, the Bench envisages in para 21 that:
Coming to the facts of the instant case, the prosecutrix/complainant has stated that she came into contact with the petitioner in the Month of June, 2017, whereafter she met him frequently and both of them developed feelings for each other. She goes on to state that the petitioner expressed his desire to enter into wedlock with her and in order to understand, he proposed to her live-in-relation, which was agreed to by the prosecutrix/respondent No. 2. The material on record reveals that the petitioner and respondent No. 2 lived with each other in the first instance upto February, 2019 from June 2017. During this period they tried to persuade the family of the petitioner so that their marriage could be solemnized but there was resistance from the family of the petitioner but still they decided to get married.

It cannot be glossed over that the Bench then points out in para 22 that:
It is not the case of the prosecutrix that right from the inception, the petitioner had extended false promise of marriage to her, with a view to exploit her sexually. It is clear from the contents of the complaint and the statement of the prosecutrix recorded under Section 164 Cr.P.C. that the petitioner and the prosecutrix lived together for several years and they developed love and feelings for each other. In fact, the prosecutrix has herself stated that the family of the petitioner was not in favour of their live-in-relationship and they resisted their marriage but in spite of this, she continued to have relationship with the petitioner.

Be it noted, the Bench then discloses in para 23 that:
In the year, 2019, the petitioner is stated to have left the company of the prosecutrix, which prompted her to file a Habeas Corpus Petition before this Court, whereafter, in the month of November, 2020, the petitioner is stated to have again assured the prosecutrix to marry her. Thereafter, the petitioner is stated to have again developed physical relationship with the prosecutrix.

Most forthrightly, the Bench minces no words to hold in para 24 that:
Once the petitioner had left the company of the prosecutrix and once she came to know that the family of the petitioner is not in favour of their marriage and live-in-relationship, prudence demanded that the prosecutrix, who is a mature girl of 38 years, should not have allowed the petitioner to stay with her once again and to have physical relationship with her. The circumstances of the case clearly indicate that the petitioner and the prosecutrix were in love with each other and they had feelings for each other, which prompted them to have physical relations with each other. Thus, it is not a case of false promise to marry but it is a case of consensual sex between two adult parties, which can be inferred from the facts and circumstances of the case.

It is also worth noting that the Bench concedes in para 25 that:
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, 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.

Most significantly, the Bench minces no words to hold in para 26 that:
In the instant case, a bare perusal of contents of the FIR reveals that there was no false promise of marriage on the part of the petitioner which had persuaded the prosecutrix to enter into sexual relationship with him. The facts on record show that the petitioner and prosecutrix had a long standing relationship of three to four years and they had lived together as partners for about two years. It is also revealed that the prosecutrix despite knowing that there would be resistance on the part of family of the petitioner to their proposed marriage, because she was ten years elder to the petitioner, still then she continued to have relationship with the petitioner. These facts clearly show that it is not a case of sexual intercourse on the basis of false promise of marriage but a case of two adult consenting parties living together and having physical relationship. Thus, no offence is constituted against the petitioner from the contents of the impugned FIR and the material collected by the investigating agency during the investigation of the case.

As a corollary, the Bench then holds in para 27 that:
For the foregoing reasons, it is a fit case where this court should exercise its power under Section 482 Cr.PC. to quash the impugned FIR and the proceedings emanating therefrom. The petition is, accordingly, allowed and the impugned FIR and the proceedings emanating therefrom are quashed.

In sum, we see that the Jammu and Kashmir and Ladakh High Court has made it indubitably clear that proposal for live-in to ascertain how relationship will work out is not false promise to marry. We thus see that the Court very rightly quashes the rape FIR for reasons as stated herein aforesaid. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh