Promise Of ‘Marriage After Divorce’ By Itself Does Not Amount To Cheating: Calcutta High Court Sets Aside Conviction Of Man In Case Under Section 417 IPC

“Thus it can be safely said that the promise of marriage, so made by the accused person, was not a promise simplicitor - it was contingent on dissolution of his marriage, that was subsisting. Victim was aware of the situation and decided to live together with the accused. Accused person did not have the competence to dissolve the marriage, either his wife would have to agree or he would have to make out a case for decree for divorce. Therefore, element of uncertainty was there since inception of such relationship. Victim, consciously accepted such risk of uncertainty. The ‘changed man’ could not go for divorce. Therefore, the promise of marriage, after divorce, by itself does not amount to cheating.”

The appellant, a married man with a daughter, was earlier ordered to pay fine of Rs. 10,00,000/- out of which Rs. 8,00,000/- was to be paid to the victim as compensation and Rs. 2,00,000/- to be deposited in the State Exchequer, as part of his sentence.

According to prosecution case, the victim had agreed to live together with the appellant as there was a promise made by him to marry her, after the dissolution of his first marriage. Later on, the appellant expressed his inability to go for divorce as it would affect his daughter adversely and would cause damage to his family reputation. The victim had filed an FIR against the appellant under Section 417 (Punishment for Cheating) and Section 376 (Punishment for Rape) of the IPC.

In the appeal before the High Court against conviction, Bibaswan Bhattacharyya, the counsel appearing for the appellant, submitted that he did not suppress any fact pertaining to his personal life, about his marriage and about his daughter. It was further submitted that the victim being an adult lady consciously took the decision to live together with him to the knowledge of her parents.

It was contended that there was no reason to hold that the victim took the decision to stay with the appellant under any misconception of fact and therefore there was no ingredient of offence within the meaning of Section 415 (Cheating) of the IPC.

The Court said that in order to invoke the provision of Section 415 of I.P.C., prosecution is under obligation to prove that the accused person induced the victim to indulge in any such sexual relationship with him.

"P.W. 1 when stated that accused person had unveiled his unhappy married life, and his status as father of his daughter, it cannot be said by any stretch of imagination that there was concealment of fact resulting into deception,” said the court

It further observed that the prosecution has not been able to prove that since the inception the accused person had this evil design to exploit the victim both financially and sexually.

Thus, the court set aside the impugned conviction order passed by the Trial Court and acquitted the appellant for the alleged offence under Section 417 of IPC.

Case Title: Gaurav Bir Basnet @ Gaurav Basnet v. The State of West Bengal & Anr.

Coram: Justice Siddhartha Roy Chowdhury

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