‘How Can A Lady Marry Another Person When Her Earlier Marriage Subsists?’: Calcutta HC Quashes Chargesheet Against Man Accused Of Raping On False Promise Of Marriage

The Court was hearing revisional application filed by the accused under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of the Chargesheet submitted under Sections 417/376 of the Indian Penal Code, 1860.

The bench of Justice Ajay Kumar Gupta observed, “When her earlier marriage was subsists, how a lady can marry to another person is a big question. There could not be any question of promise to marry given by the petitioner to her at that stage. She was matured and capable enough to understand the consequences of the moral and immoral acts for which she consented during subsistence of her earlier marriage.”

Brief Facts-

A Complaint was filed against the Petitioner Bhabatosh Biswas alleging that he promised that he will marry her and based on such assurance engaged in physical relations with her. The petitioner denied the accusations, stating he was falsely implicated. He argued that the complainant being a married lady the question of their marriage does not arise. He further argued that as both parties are adults and engaged in consensual relations, no offence occurred and the chargesheet, he contended, was filed without proper consideration and should be quashed.

The Court noted that there was no document to show that the complainant's marriage with her husband was dissolved.

According to the Court, no sufficient ingredients were brought on record during the investigation to constitute offences under Section 417/376 of the IPC.

The Court stated that from the entire materials, it appeared that the complainant had given consent for cohabitation not only a single day but on several occasions on different dates in different places. Therefore, undisputedly and undoubtedly she continued to have such a relationship with the petitioner for a long period.

The Court stated that the decision of the SC in Criminal Appeal No. 3431 of 2023 in XXXX vs. State of Madhya Pradesh and Another squarely applied to the present case. The Court quoted, “Similar issue was considered by this Court in Naim Ahamed v. State (NCT of Delhi) reported in 2023 SCC OnLine SC 89 on almost identical facts where the prosecutrix herself was already a married woman having three children. The complaint of alleged rape on false promise of marriage was made five years after they had started having relations. She even got pregnant from the loins of the accused. Therein she got divorce from her existing marriage much after the relations between the parties started. This Court found that there cannot be any stretch of imagination that the prosecutrix had given her consent for sexual relationship under misconception.”

Accordingly, the Court quashed the chargesheet filed for the offences under Sections 417/376 of the Indian Penal Code.

Finally, the Court allowed the revision application.

Cause Title: Bhabatosh Biswas v. State of Bengal

Appearance:

Appellant: Adv. S.M. Obaidullah and Adv. Sudarshan Roy

Respondent: Adv. Asraf Mondal, Adv. Bani Israil, Adv. Faria Hossain and Adv. Mamata Jana

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