2026 INSC 1179 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO S. 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.

M.C. No.1221/2015.

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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

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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, w herein

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

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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 co mmitted 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

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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 payme nt 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

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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

28

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 persona l

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.