The Jharkhand High Court recently comprising of a bench of Justice Sanjay Dwivedi noted that a married woman could not be lured into providing consent for a sexual relationship with a man other than her husband on the basis of a false promise, adding that the act cannot be considered rape. (Manish Kumar Sharma @ Manish Kumar v. The State of Jharkhand & Anr.)
Facts of the case
The petition was filed for quashing of the order dated 24.09.2021 including the entire criminal proceeding arising out of Case registered for the offence under section 406, 420, 376(2)(n) of the IPC and pending before the learned Chief Judicial Magistrate, Deoghar.
As per the Fardbeyan of the O.P.No.2, the case was registered alleging therein that the petitioner is posted at STP Ranchi and during posting at Shrawan Mela, petitioner came in contact with the informant at her father’s shop and got to know that the informant was a married woman and a divorce litigation was pending with her earlier husband. It was also alleged that the informant had financial terms with the petitioner and she had deposited an amount in the account of the petitioner via Google Pay, the petitioner also enticed to marry informant after her divorce. It was further alleged that thereafter on 03.12.2019 the petitioner put vermilion on her head at Nandan Pahar temple and married with informant and thereafter established physical relation with her several times by making false pretext to marry after her divorce, but on 11.02.2021, the petitioner completely denied to marry the informant.
Contention of the Parties
The learned counsel appearing on behalf of the petitioner submitted that mother of the petitioner namely, Suman Devi has filed the private complaint case against the O.P.No.2 under section 147, 341, 323, 380, 406, 420, 452, 504, 34 of the IPC in which cognizance has been taken. She further submitted that the informant under section 164 Cr.P.C has stated that she is already married and engaged in litigation for divorce with her husband. She submitted that she was already married and there is no question of alluring her for marriage as she was already married and established relationship and both the petitioner and the O.P.No.2 were adult. She submitted that only on that ground the case has been registered and even section 376(2)(n) of the IPC is not attracted. She further submitted that the order taking cognizance dated 24.09.2021 is also not a speaking order and in that view of the matter, the entire criminal proceeding may kindly be quashed.
On the other hand, the learned counsel appearing on behalf of the O.P.no.2 submitted that the petitioner has established relationship with O.P.No.2 on the false pretext of marriage and in that view of the matter, the learned court has rightly taken congnizance. He submitted that there are judgments of Hon’ble Supreme Court that if on the pretext of marriage the relationship is established, the case under section 376 of IPC can be maintained.
Mr. Tiwari, the learned counsel appearing on behalf of the respondent State submitted that the ingredients of section 420 IPC is also there and in that view of the matter, the learned court has rightly taken cognizance.
Courts Observation and Judgment
The bench at the very outset observed, "Annexure-4 is the statement of the informant under section 164 Cr.P.C. in which in paragraph no.4 she has clearly stated that she was married with one Pradip Mandal and the case of divorce is going on which suggest that a married woman has established relationship with her consent with this petitioner. The question remains that when two adult have established relationship particularly considering that the informant is a married woman, whether section 376(2)(n) IPC can be attracted or not ?"
The bench disposing off the petition remarked, "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.
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. Section 406 IPC is for punishment for breach of trust. In order to bring criminal breach, to prove entrustment is an essential ingredient under section 405 IPC. Section 420 IPC is only made out if from the very beginning the intention of cheat is there which is lacking in the facts and circumstances of the present case. Thus, prima facie it appears that the ingredients of those sections are not made out."
Read Judgment ;
Social media is bold.
Social media is young.
Social media raises questions.
Social media is not satisfied with an answer.
Social media looks at the big picture.
Social media is interested in every detail.
social media is curious.
Social media is free.
Social media is irreplaceable.
But never irrelevant.
Social media is you.
(With input from news agency language)
If you like this story, share it with a friend!
0 Comments