Author Details:-
TARUMITA BISWAS
1st Years, B.Sc. LL.B
West Bengal National University of Juridical Science
NUJS, Kolkata
Background of the Case:
According to F.I.R., the prosecutrix stated that:
- Prosecutrix, a married woman, having a daughter aged 15, she was managing her own cloth shop.
- In 2017, Sadbhav Company had taken the first floor of their house for rent. The appellant worked with the company.
- She knew the Appellant from 2017. He used to come and sit in the prosecutrix’s shop in his spare time.
- As she stayed separate from her husband, the appellant proposed that he would marry her if she takes divorce.
- 10 – 12 – 2018: She got divorced from previous husband
- 10 – 1 – 2019, 11p.m: Appellant made physical relations with her by promising her to marry.
- 6 – 6 – 2020: Alleged that Appellant again made physical relationship with her
- 11 – 12 – 2020: When she insisted on marriage, the appellant said that his family disagreed and he refused to marry.
- 11 – 12 – 2020: FIR against appellant got recorded.
Statement recorded under Section 164, CRPC:
Statement by prosecutrix:
- The parties admittedly were in relation from 2017.
- There was no promise to marry initially when the relationship between the parties started in the year 2017.
- In 2018, the appellant went to Maharashtra for a Job. He used to visit her home and take care of the complainant as well as her daughter.
- In 2019, she got divorced from her husband, who used to harass and beat her.
- That alleged promise to marry came in January 2019, and from then on, they started having a physical relationship.
- She married the appellant in a temple in January 2019. So, she remarried the appellant during the subsistence of her earlier marriage.
- Despite assurance. The appellant did not solemnise the court marriage.
- From January 2019 to June 2020, they started leading a married life and having physical relations. The appellant treated the complainant as his wife.
- 13 – 1 – 2021: Divorce Decree by mutual consent with previous husband dated.
- Alleges that they had a physical relationship while she was married.
- She is ten years older than the appellant and mature enough to have knowledge about moral and immoral acts, but she consented during the subsistence of her earlier marriage.
- After that, the appellant refused to respond to her calls and even marry her.
Statement by parents and daughter of prosecutrix:
- The parties are found residing together like a husband and wife.
Statement by appellant:
- It held that she was betraying her husband.
- Appellant used to return at home and stay with her while he got a job in Maharashtra.
- Appellant also advanced a loan for Rs. 1,00,000 for the prosecutrix and sent her that through a banking channel, which she never returned.
Sections Applied:
- Cohabiting with a person in false belief of marriage on either party. (IPC[1]: 493, BNS[2]: 80)
- If known to partner about former marriage. (IPC: 494, BNS: 81)
- Rape: (IPC: 376, 376A, BNS: 63,64)
- Recording of confessions and statements. (CrPC[3]: 164, BNSS[4]: 183)
- Saving of inherent power of High Court. (CrPC: 482, BNSS: 528)
Cases Cited:
- (2023) 15 SCC 385: 2023 SCC OnLine SC 89, 9. Naim Ahamed v. v. State (NCT of Delhi)
- 2022 SCC OnLine MP 1837, Vinod Gupta v. State of M.P. (reversed)
- (2013) 9 SCC 293: (2013) 3 SCC (Cri) 920, Prashant Bharti v. State (NCT of Delhi)
Arguments
The Appeal:
The appellant in the present case is aggrieved by the order passed by the High Court of Madhya Pradesh whereby a petition filed by him under Section 482 CrPC for quashing of FIR was dismissed.
Arguments By Appellant:
The learned counsel for the appellant submitted that the FIR by the complainant/prosecutrix is an abuse of process of law. The complainant/prosecutrix was a married woman having a daughter of 15 years of age, living with her parents, as she is separated from her husband. In the same house, the appellant had physical relations with the complainant with the consent of her parents and daughter; there could not be any question of promise to marry given by the appellant to her when it is known she is already married.
Huge Discrepancies between the statements of FIR and the statements RECORDED under Section 164, CrPC. The prosecutrix claimed that she got a divorce from her previous husband on 10 – 12 – 2018 and married the appellant in a temple in January 2019, but the fact is that her divorce decree was passed on 13 – 1 – 2021. The initiation of proceedings against the appellant was an abuse of law.
(Citing decisions of – 1. (2023) 15 SCC 385: 2023 SCC OnLine SC 89, 9. Naim Ahamed v. State (NCT of Delhi)[5] and (2013) 9 SCC 293: (2013) 3 SCC (Cri) 920, Prashant Bharti v. State (NCT of Delhi)[6].
The appellant also advanced a loan for Rs. 1,00,000 for the prosecutrix and sent her that through a banking channel, which she never returned.
Arguments By Prosecutrix:
The learned counsel for the State stated that, in this case, there is a definite claim of rape based on a false promise to marry. At the quashing stage, just the contents of the FIR may be seen. A thorough examination of the documents reveals a strong case against the appellant.
The complainant, living with her parents after a marital dispute, entered into a relationship with the appellant, her tenant, based on a false promise of marriage. They had physical relations and a temple wedding in 2019, with her family aware. The appellant even listed her as a nominee on his insurance policy. The counsel argues that this constitutes rape based on false promises, and the FIR should not be quashed.
Judgment:
All subsequent proceedings thereto were quashed, and the appeal was allowed.
It is referred to the stand taken by the complainant in the FIR and the statement she got recorded under Section 164 CrPC. There are discrepancies therein.
The complainant’s statement under Section 164 CrPC changes, revealing that they have been in a relationship since 2017, with consent, whereas the alleged marriage promises were in January 2019. The complainant’s consent and the appellant’s parents and daughter’s statement are also evident, as they lived in the same house having physical relations.
The complainant claims in her FIR that she divorced her previous husband on 10-12-2018 and that her marriage with the appellant was solemnised in January 2019. However, the date of divorce is contradicted by the decree granting divorce by mutual consent on 13-1-2021, implying she remarried with the appellant during her previous marriage’s subsistence. So, her claim of the divorce date in her FIR was untrue.
The complainant, a woman about ten years older than the appellant, is mature and intelligent enough to understand the consequences of her actions. The fact that she was betraying her husband. Even after the appellant moved to Maharashtra for work, he used to come and stay with the family, and they were living as husband and wife.
Analysis:
In this case, discrepancies between statements recorded under Section 164, CrPC and the Claims in FIR make a conclusion that the prosecutrix belied to the Police formally. Also, she concealed the facts of her marriage and divorce from the appellant while staying with him and marrying him at a local temple.
Though her husband was abusive, she remarried the appellant while being married & on the other side, concealing the proper date of her divorce with the previous person; both of the incidents were complete betrayals to both the previous husband and the appellant.
This Case made a Landmark Judgement: “No Rape on False Promise to Marry when the woman is already married.”
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