The Supreme Court has quashed criminal proceedings against a man accused of rape on the false promise of marriage, observing that the physical relationship between the parties was consensual over several years and was not induced by any false promise, especially since both were aware of their earlier marriages and the complainant had herself advertised for remarriage before her divorce was finalised.
A bench comprising Justice K.V. Viswanathan and Justice Manmohan allowed the appeal filed by Shaileshbhai Govindbhai Makwana and set aside the order dated 03.09.2025 passed by the Bombay High Court, Aurangabad Bench, which had dismissed his petition seeking quashing of RCC No.328/2021 pending before the Judicial Magistrate First Class, Tuljapur.
The proceedings arose out of an FIR dated 09.02.2021 lodged by the respondent no.2 against the appellant for offences punishable under Sections 376(2)(n), 377 and 506 of the IPC. According to the complainant, she was earlier married in 1998 but started living separately from her husband in 2012. In 2017 itself, before her divorce was finalised, she gave an advertisement on a matrimonial site and created a profile for a second marriage. The appellant got her number from the site, remained in contact, talked affectionately, and guaranteed that he would marry her. On 17.10.2017, he visited Tuljapur, stayed with her for 2-3 days, helped with household work, took care of her son, and talked about marrying her. The complainant was told that the appellant was also in the process of getting divorced from his first wife. Believing his words, she divorced her husband.
The complainant stated that one night in Tuljapur, the appellant against her will had sexual intercourse with her and also had unnatural intercourse. Even thereafter, the parties continued in a relationship, the appellant visited for 2-3 days and had a physical relationship. They stayed in a hotel in Bhuj, Gujarat for four days and had a physical relationship. The physical relationship continued and the parties stayed together at a hotel in Surat. On 03.10.2020, the physical relationship continued for several days thereafter. The complainant even stated that she transferred initially a sum of Rs.10,000/- and in all a sum of Rs.2,50,000/-.
It was stated that on 06.02.2021 when she came to Surat and called the appellant to meet her at night, he did not come. She called again the next morning for which there was no response. In the morning, the appellant called her to Sumul Dairy Road. The complainant stated that she wanted to marry him but the appellant’s brother stated that he would not let them get married and the appellant also refused to marry. It is at this point that the complainant came to Mahidharpura Police Station to file a complaint on 08.02.2021, stating that after giving a guarantee that he would marry her, the appellant refused to marry the complainant. Thereafter, the complainant stated that by this process the appellant lured her with the promise of marriage against her will and established physical intercourse including forcible sexual intercourse. Chargesheet was filed for the offences punishable under Sections 376(2)(n), 377 and 506 IPC.
The High Court, on being approached, dismissed the quash petition primarily on two grounds: one that the earlier quash petition was dismissed as withdrawn and secondly, the offences required trial.
Mr. Sachin Patil, learned counsel for the appellant, submitted that both the appellant and the complainant were married earlier and it was within their knowledge. More importantly, he submitted that in 2017 itself, when the complainant was not divorced, she put her profile on the matrimonial site for a second marriage. Admittedly, for at least a period of 04 years before the FIR was lodged on 09.02.2021, parties with full knowledge that they were earlier married continued in a physical relationship. The physical relationship continued even at points when the complainant’s divorce was not finalized. Since, according to the records, divorce was finalized only in 2018.
In so far as the maintainability of the quash petition is concerned, Mr. Patil argued that there is no inviolable rule that the second quash petition will not be maintainable. Since the earlier proceedings were dismissed as withdrawn on the facts and circumstances, Section 482 petition could not have been thrown out on maintainability. He relied on the judgment reported in M.C. Ravi Kumar vs. D.S. Velmurugan & Ors. ([2025] SCC Online SC 1498) (See also Superintendent & Remembrancer of Legal Affairs West Bengal v. Mohan Singh And Others, [(1975) 3 SCC 706]).
Ms. Rukhmini Bobde, learned counsel for the respondent-State, defended the impugned order.
The Supreme Court, after carefully considering the submissions and perusing the records, observed that a careful perusal of the records indicates that both parties were aware that they were earlier married to different spouses; the complainant at a point when her divorce was not finalized put up a matrimonial advertisement; admittedly, for over a period of 04 years, the parties travelled together and established a physical relationship; the physical relationship which the complainant states to have been forceful was on 17.10.2017; admittedly, even after 17.10.2017 parties travelled together and had a physical relationship; no complaint of the incident of 17.10.2017, about the forcible sexual intercourse and the unnatural sex was lodged till 09.02.2021.
In the above background, the Court held that this was not a case where a promise of marriage resulted in the appellant deceiving the complainant. Parties have happily cohabited together between 2017 and 2020 and, thereafter, the relationship soured.
The Court referred to its judgment in Mahesh Damu Khare v. State of Maharashtra and Anr. (2024) 11 SCC 398, wherein it was held that there is a difference between giving a false promise and committing breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceived the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfil his promise. So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376.
The Court further observed that in its view, if a man is accused of having sexual relationship by making a false promise of marriage and if he is to be held criminally liable, any such physical relationship must be traceable directly to the false promise made and not qualified by other circumstances or consideration. A woman may have reasons to have physical relationship other than the promise of marriage made by the man, such as personal liking for the male partner without insisting upon formal marital ties.
Thus, in a situation where physical relationship is maintained for a prolonged period knowingly by the woman, it cannot be said with certainty that the said physical relationship was purely because of the alleged promise made by the appellant to marry her. Thus, unless it can be shown that the physical relationship was purely because of the promise of marriage, thereby having a direct nexus with the physical relationship without being influenced by any other consideration, it cannot be said that there was vitiation of consent under misconception of fact.
The Supreme Court was also not convinced with the reasoning of the High Court that the quash petition was not maintainable, especially because in the present case the earlier petition was withdrawn without any discussion on the merits. Further when the Court examined the facts and found that the offence alleged is not made out, it felt it would not be just to throw out the petition on maintainability. The Court said so on the special facts of this case.
In view of what has been discussed hereinabove, RCC No. 328/21 pending before the Judicial Magistrate First Class, Tuljapur, Taluk Tuljapur, Dist. Osmanabad, Maharashtra would stand quashed. The appeal is allowed and the impugned order dated 03.09.2025 in Criminal Application No.2335 of 2025, passed by the High Court of Judicature at Bombay, Bench at Aurangabad is set aside. Bail bonds if any, shall stand discharged.
Case Title: Shaileshbhai Govindbhai Makwana Versus The State of Maharashtra & Anr.
Citation: 2026 INSC 446
Coram: Justices K.V. Viswanathan and Manmohan
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