ORDER : 1. The prayers in the aforecaptioned Criminal Miscellaneous case filed under Sec.482 of the Cr.P.C are as follows: “(i) quash all further proceedings against the petitioner in Annexure-A final report in Crime No.2002/2018 of Kadakkal Police Station, now pending before the Assistant Sessions Court, Kottarakkara as S.C.No.1324/2019 as it is an abuse of process of court or (ii) issue such other order or direction, as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.” 2. Heard Sri.K.V.Anil Kumar, learned counsel appearing for the petitioner/accused, Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for the 1st respondent and Sri.M.K.Mohanan, learned counsel appearing for contesting respondent No.3 (lady de facto complainant). 3. The petitioner has been arrayed as the sole accused in the instant Crime No.2002/2018 of Kadakkal Police Station, Kollam, which has been registered for offences punishable under Sec.376 of the Indian Penal Code on 14.11.2018 on the basis of the First Information Statement given by the 3rd respondent-lady de facto complainant on that day in respect of the alleged incidents, which were said to have happened about six years prior to 16.04.2018. The police after investigation has filed the impugned Annexure-A final report/charge sheet in the abovesaid crime No.2002/2018 of Kadakkal Police Station and the case has been committed to the sessions court concerned and thereafter, the case is now pending as sessions case S.C.No.1324/2019 on the file of the Assistant Sessions Court, Kottarakkara. The petitioner seeks quashment of the impugned criminal proceedings. Now it is submitted by the petitioner that the entire disputes between the petitioner and the 3rd respondent have been resolved and that the 3rd respondent has filed Annexure-B affidavit dated 20.12.2019 stating that she does not wish to continue with the impugned proceedings and that the petitioner has agreed to give maintenance to her and to the child, etc. Further, the learned counsel for the petitioner would point out that even if, the allegations raised in the impugned criminal proceedings by the 3rd respondent are assumed to be broadly correct, then it can be seen that the said sexual incidents if any, would have occurred only on the basis of consent between the parties and not otherwise. 4. Further, the learned counsel for the petitioner would point out that even if, the allegations raised in the impugned criminal proceedings by the 3rd respondent are assumed to be broadly correct, then it can be seen that the said sexual incidents if any, would have occurred only on the basis of consent between the parties and not otherwise. 4. It is by now well settled that it may not be right and proper for this Court ordinarily quash serious and grave offence of rape as per Sec.375 of the IPC, solely on the ground of settlement between the parties [see Shimbhu v. State of Haryana (2014) 13 SCC 318 , Parbatbhai Aahir v. State of Gujarat (2017) 9 SCC 641 , Anita Maria Dias v. State of Maharashtra, (2018) 3 SCC 290 , Sebastian @ Solly v. State of Kerala, 2015(1) KLJ 384 , etc.]. However, this Court has held in decisions as in Freddy @ Antony Francis v. State of Kerala [ 2017 KHC 344 = 2018 (1) KLD 558 ], Denu P.Thampi v. Ms.X [ 2019 (3) KHC 199 = 2019 (2) KLT 996 ] that in a case where the petitioner/accused has married the respondent-lady victim and they have started their married life, then in appropriate cases, this Court could exercise its discretion conferred under Sec.482 of the Cr.P.C to quash offences, as per Sec.376 of the IPC on the ground that the victim has subsequently married the accused, as otherwise and where it is ascertained that the marriage was on the basis of consent of the parties and not on the basis of any coercion or threat on the victim, etc. 5. However, the main ground urged by the petitioner is that even going by the admitted prosecution materials, more particularly, the statements of the 3rd respondent given to the District Agency, it can be seen that even if, it is assumed that the alleged sexual incidents are broadly correct, then it would have happened only on the basis of consent between the parties and therefore, it does not constitute the vital ingredients of the offence of rape as per Sec.375 of the IPC, which is punishable under Sec.376 of the IPC. 6. 6. Before dealing with the facts of this case, it will be pertinent to refer to the broad legal principles laid down by the Apex Court and various High Courts, including this Court in the matter of the substantial distinction between rape as per Sec.375 of the IPC, which is punishable under Sec.376 of the IPC on the one hand and consensual sexual relationship between the parties. The said issue is the subject matter of a catena of rulings of the Apex Court in decisions as in Uday v. State of Karnataka, reported in (2003) 4 SCC 46 and Deelip Singh @ Dilip Kumar v. State of Bihar, reported in (2005) 1 SCC 88 , wherein it has been held that where the woman has voluntarily and consciously consented to have a sexual relationship with the accused, then her consent cannot be said to be in consequence of any misconception of fact as envisaged in Sec.90 of the IPC. In Dr.Dhruvaram Murlidhar Sonar v. The State of Maharashtra & Ors., reported in 2019 (1) SCALE 64 , the Apex Court has again highlighted about the substantial distinction between rape and consensual sexual relationship. In Shivshankar @ Shiva v. State of Karnataka & another (judgment dated 06.04.2018 of the Apex Court in Crl.Appeal No.504/2018), it has been held that it will be rather difficult to hold sexual intercourse in the course of a relationship which was continued for several years is ‘rape’, especially in the face of the complainant’s own allegation that they lived together. In Dhruvaram Murlidhar Sonar’s case (supra), the Apex Court had elucidated the principles in that regard and it has laid down the clear distinction between rape and consensual sexual relationship and that the acknowledged consensual physical relationship between the parties would not constitute an offence under Sec.376 of the IPC. It has also been held that breach of promise to marry in such cases will not by itself lead to a scenario, whereby it can be held that the consent of the woman to undergo sexual relationship was obtained on the basis of misconception of fact as understood in Sec.90 of the IPC. 7. The Division Bench of the Calcutta High Court in the case in Jayanti Rani Panda v. State of West Bengal & anr. 7. The Division Bench of the Calcutta High Court in the case in Jayanti Rani Panda v. State of West Bengal & anr. [1984 CriLJ 1535 = 1984 KHC 1148] has also inter alia held that in a case where the prosecution advances that the consent of the woman to have the sexual relationship was secured on the basis of misconception of fact as understood in Explanation.2 of Sec.375 of the IPC and Sec.90 of the IPC, then there has to be the materials to show that the accused had no intention to keep that promise right from the commencement of the relationship and that the failure to keep promise to marry at a future uncertain date due to reasons not clear from the materials does not always amount to misconception of fact at the inception of the act itself and that in order to come within the meaning of misconception as understood in Explanation No.2 of Sec.375 of the IPC and Sec.90 of the IPC, the fact must have an immediate relevance. Further that, where full grown adults consent to have sexual intercourse and continuously indulge in such activity for quite some time, then the same could be construed only as an act of promiscuity on their part and cannot be said to be an act induced by misconception of fact as understood Sec.90 of the IPC and that in such cases, Sec.90 of the IPC cannot be called in aid unless the court can be assured that for the very inception, the accused never really intend to marry her, etc. 8. Coming to the facts of this case, it can be seen that the specific allegations made by the 3rd respondent-lady de facto complainant in the First Information Statement dated 14.11.2018 and in the other materials, are to the effect that at that time she is a lady aged 31 years and was already married and that she had married another person on 23.05.2008 and had a minor son aged 8 ½ years and that due to matrimonial disputes, she and her husband were living separately. Thereafter, she became acquainted to the petitioner who was having painting job and they developed an intimate love affair and at that time she was running a tailoring shop in the locality in question. That the accused had telephoned her and told her that he wants to marry her. Thereafter, she became acquainted to the petitioner who was having painting job and they developed an intimate love affair and at that time she was running a tailoring shop in the locality in question. That the accused had telephoned her and told her that he wants to marry her. That at that time, the 3rd respondent’s husband was in a gulf country. Later, the petitioner had come to her house for painting work and on the assurance that he would marry her, the petitioner and the 3rd respondent had sexual relationship on the day in question, which came to the notice of the other people in her house. That later, the petitioner’s husband had deserted her. That earlier, the petitioner had never disclosed to her that he has already married and later the petitioner’s wife came to the 3rd respondent’s house and told her to leave the place, as the petitioner has already married and that only then she came to know that the petitioner was already married. Later, the petitioner came to her house on several occasions and they had sexual relationships on various occasions. Later, on coming to know that the people of the locality may make some trouble, if she continues to reside in that property, she was asked by the petitioner to reside in another place and she did so and thereafter, both of them used to have frequent sexual relationship in her new residence. That the petitioner even then used to assure her that he would marry her. Later, she became pregnant and the petitioner refused to see her and take care of her, etc. and that she has felt cheated and thereupon, she has lodged the abovesaid FIS on 14.11.2018, which led to the registration of the instant crime. 9. So from the admitted allegations discernible from the prosecution materials, it can be seen that the 3rd respondent then aged 31 years was already married to another person since May, 2008 and she had a minor son aged 8 ½ years. Initially she did not know that the petitioner has married and based on his promise that he would marry her, both of them entered into sexual relationship. Initially she did not know that the petitioner has married and based on his promise that he would marry her, both of them entered into sexual relationship. Later, even after coming to know that the petitioner has married, which information was conveyed to her by none other than the wife of the petitioner, still the petitioner and the 3rd respondent continued to have sexual relationship. Later, the 3rd respondent moved away from the locality to another place and even thereafter, also both the rd respondent and the petitioner have entered into sexual relationship which lasted for a long time and she became pregnant, etc. Therefore, it is admitted case of the prosecution that the 3rd respondent has already married. Hence, it can be seen that the promise alleged to have been made by the accused to a married woman that he would marry her, etc. is a promise, which is not enforceable in law and is seen by public policy and morals and hence, unenforceable in view of the mandatory provisions contained in Sec.23 of the Indian Contract Act. Such an unenforceable and illegal promise cannot be the basis for the prosecution to contend that the consent of the woman, who has sexual relationship with the accused, was obtained on the basis of misconception of fact, as understood in Explanation No.2 of Sec.376 of the IPC and Sec.90 of the IPC. That apart, a reading of the abovesaid materials would make it clear that with wide and opened eyes and even after coming to know that the petitioner has already married, the 3rd respondent and the petitioner have entered into a long standing sexual relationship, even though both of them are married. In the light of all these aspects, it is only to be held that even if it is assumed that the sexual incidents alleged in the prosecution materials are assumed to be broadly true, then it has to be held that such incidents could have happened only on the basis of consent of two full grown adults. As observed hereinabove, in such cases it can be only said that the sexual relationship entered into by two full grown adults, can be only on the basis of promiscuity and passions to have their mutual companionship, which also is inclusive of sexual relationship. As observed hereinabove, in such cases it can be only said that the sexual relationship entered into by two full grown adults, can be only on the basis of promiscuity and passions to have their mutual companionship, which also is inclusive of sexual relationship. Such a scenario cannot be the basis to contend that the vital ingredients of rape as per Sec.375 of the IPC are fulfilled and that the accused is to be prosecuted for the said offence. Hence, it is only to be held that the vital ingredients of the offence of rape as per Sec.375 of the IPC, which is punishable under Sec.376 of the IPC are conspicuously absent in this case and hence, the continuance of the impugned criminal proceedings is nothing, but a mere wastage of time and precious resources of the judicial organs, the prosecution machinery and the police agency and it amounts to an abuse of the process of the Court. Moreover, the 3rd respondent has now stated that the petitioner has agreed to maintain her and the child born to her in the abovesaid sexual relationship with the petitioner, etc. 10. Taking into account the totality of the facts and circumstances of the case, this Court is inclined to take the view that the impugned criminal proceedings could be considered for quashment by exercise of the inherent powers conferred on this Court under Sec.482 of the Cr.P.C, as its further continuance would amount to an abuse to the process of this Court, which would also be nothing but permitting mere wastage of the precious time and resources of the court and the prosecution machinery. 11. In that view of the matter, it is ordered that the impugned Annexure-A final report/charge sheet filed in Crime No.2002/2018 of Kollam Kadakkal Police Station, which has now led to the pendency of sessions case S.C.No.1324/2019 on the file of the Assistant Sessions Court, Kottarakkara as against the petitioner/accused and all further proceedings emanating therefrom as against the petitioner/accused will stand quashed and set aside. 12. The petitioner will produce a certified copies of this order before the Investigating Officer concerned as well as before the Assistant Sessions Court, Kottarakkara, who is dealing with S.C.No.1324/2019, for necessary information. With these observations and directions, the above Crl.M.C will stand disposed of.