Married Woman Can't Be Lured To Give Consent For Sex On False Promise Of Marriage: Jharkhand High Court

While setting aside the order taking cognizance of charge of rape foisted upon the accused-petitioner, a Single Judge Bench of Justice Sanjay Kumar Dwivedi observed,

"In the case in hand, the victim who is a married woman voluntarily had sex with the petitioner, knowing that she cannot enter into marriage with the petitioner in view of the fact that she was a married woman. Even assuming that promise by the petitioner for marriage, she was knowing that she is a married woman and marriage will not take place, and inspite of that she has established relationship with the petitioner that promise is illegal and that cannot be a basis for prosecution under section 376(2)(n) of the IPC."

Factual Background

The petitioner came in contact with the victim/informant (OP No. 2 herein) and got to know that she was a married woman who, at the point of time, was party to a divorce litigation with her husband. It was alleged that the petitioner enticed to marry the informant after her divorce. On 03.12.2019, the petitioner allegedly put vermilion on her head at a temple. Thereafter, they had sexual intercourse on several occasions, but on 11.02.2021, the petitioner completely denied to marry her.

Subsequently, a case was registered for commission of the offences under Sections 406, 420, 376(2)(n) of the IPC and Chief Judicial Magistrate, Deoghar took cognizance of the said offences in an order dated 24.11.2021. Being aggrieved by the same, the petitioner approached the High Court for quashing the entire criminal proceedings.

Contentions of Parties

Ms. Prachi Pradipti, counsel for the petitioner submitted that the informant in her statement under Section 164, Cr.P.C. has admitted that she is already married and at the relevant time, she was engaged in litigation for divorce with her husband. Thus, she argued, as she was already married, there was no question of alluring her for marriage. She further submitted that on that ground, the charge under Section 376(2)(n) cannot be sustained.

Mr. Sumit Prakash, counsel appearing on behalf of the informant submitted that the petitioner has established relationship with the informant on the false pretext of marriage and therefore, the CJM has rightly taken cognizance. He argued that there is catena of rulings of the Supreme Court which concluded that if on the pretext of marriage, sexual relationship is established, then a case under Section 376 of IPC can be maintained.

Court's Observations

The Court took note of the statement made by the informant under Section 164, Cr.P.C. in which she had clearly stated that she was married and the case of divorce was going on at the relevant time. The Bench held, this fact suggests that the informant established relationship with the petitioner with her consent, even after knowing that she cannot marry him as she was already married.

Hence, the vital question posed before the Court was to decide as to whether a case under Section 376 for commission of rape can be maintained against a man with whom a married woman enters into consensual sexual relationship on the false pretext of marriage.

Having regard for the facts of the case, the Court observed that the informant, who is a married woman, voluntarily had sex with the petitioner knowing that she cannot enter into marriage with him as she was already married. Thus, the Court held, if she chooses to have sexual relationship on the pretext of such promise, such promise becomes illegal and that cannot form the basis to attract charge under Section 376. It further said,

"In the case in hand, there is no question that this petitioner has allured as she was already married and she was not divorced and inspite of that she has established the relationship with this petitioner."

The Court also made it clear that Section 420 of the IPC is only made out if from the very beginning the intention to cheat is there, which was absent in the instant case. Thus, prima facie it appeared to the Bench that the ingredients of that provision are not established.

Accordingly, the Court quashed the impugned order of the CJM and remitted the matter back to the Court below for considering the case afresh having regard for the settled points of law.

Case Title: Manish Kumar Sharma @ Manish Kumar v. The State of Jharkhand & Anr.

Case No.: Cr.M.P. No. 488 of 2022

Order Dated: 6^th December 2022

Coram: Sanjay Kumar Dwivedi, J.

Counsel for the Petitioner: Ms. Prachi Pradipti, Advocate

Counsel for the Respondents: Mr. Shailendra Kumar Tiwari, Advocate for the State; Mr. Sumit Prakash, Advocate for the OP No. 2

Citation: 2022 LiveLaw (Jha) 96