Can't Use 'Astrological Incompatibility' To Avoid Rape Charges On False Promise Of Marriage – Bombay High Court

Justice Sandeep Shinde said it was clear from the man's conduct that he had no intention of marrying the girl right from the beginning. Because, if his intentions were genuine, he wouldn't refuse to marry her, citing mismatched horoscopes after she withdrew her first police complaint.

The woman had withdrawn her complaint after the accused Avishek Mitra agreed to honour his marriage commitment before a police officer assigned as a counsellor.

"In the case at hand, there is sufficient material to suggest that since the inception, applicant had no intention of upholding his promise to marry the complainant...It is apparent that the applicant in the guise of astrological incompatibility of the horoscopes avoided the promise."

"Thus, I am convinced...it is a case of false promise to marry which apparently vitiates the complainant's consent", the judge noted.

The accused booked for rape and cheating approached the Bombay High Court in a revision application under Section 397 read with Section 401 of the CrPC after his plea for discharge under section 227 did not find favour with the Additional Sessions Judge, at Dindoshi.

Senior Advocate Raja Thakare for the accused relied upon conversations between the woman and the accused's father to argue that the family at one point was willing to get the couple married subject to religious prohibitions. And since their horoscopes didn't match, relations could not be furthered. Thus he claimed it was a case of breach of promise and not the false promise of marriage.

The court noted that this entire conversation happened after the girl had withdrawn her first complaint and the man had refused to marry her.

"Prima facie I am of the view that the applicant prevailed over the complainant to withdraw her first complaint lodged in December, 2012 by promising that he would marry her. However, his intentions were otherwise. Had intentions were bonafide and true, the applicant would not have addressed a letter to Mr. Parulekar (Counsellor) and resiled from his promise to marry the complainant. Notably, this letter was addressed to Counsellor within twelve days from the date on which complainant withdrew her first complaint," the court observed.

The court relied on the case of Pramod Suryabhan Pawar v. State of Maharashtra (2019) where the Supreme Court has held, 'a breach of promise to marry cannot, be a false promise. To establish false promise, maker of promise should have had no intention of upholding his words at the time of giving it.'

The court said that it was a settled law that while considering the question of framing of charges under Section 227, the Court has the power to sift and weigh the evidence for the limited purpose of finding out whether prima-facie case against the accused has been made out.

"The facts emerging from the material/documents on record taken at their face value, disclose the existence of all ingredients constituting alleged offence under Section 376 of the IPC. For these reasons, application deserves no consideration."

Background

The accused and complainant got to know each other in 2012 when they were working in a five-star hotel and established physical relations in October. The complainant had alleged that the accused had indulged in physical relations with her by promising marriage on several occasions.

Thereafter, the woman became pregnant and the accused asked her to abort the foetus, promising to marry her after two years. He forced himself on her once after the abortion and started ignoring her after that, she alleged.

Following this behaviour, the complainant approached the police. When the case was referred for mediation to an officer in January 2013, the accused again promised to marry her in front of everyone. Twelve days later he refused.

The accused's father then allegedly told the complainant that their horoscopes didn't match. The woman then approached the police that registered a cheating and rape case against the man.