Married Woman Cannot Be Lured To Give Consent For Sex On False Pretext Of Marriage- Jharkhand High Court

The Bench of Justice Sanjay Kumar Dwivedi held that even assuming the promise of marriage by the Petitioner in the case, she was knowing that she is a married woman and marriage will not take place, and in spite of that she has established relationship with the Petitioner and that promise is illegal and cannot be the basis for prosecution under Section 376(2)(n) of IPC.

In this case, the Petitioner came in contact with the informant at her father's shop and go to know that the informant was a married woman and 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 the amount in the account of the Petitioner. The Petitioner had also enticed to marry the informant after her divorce and further also established sexual relations with her by making a false pretext of marriage after her divorce. Thereafter, the Petitioner denied marrying the informant.

The mother of the Petitioner filed registered a complaint against the informant under Sections 147, 341, 323, 380, 406, 420, 452, 504, and 34 of the IPC.

It was submitted by the Petitioner that the informant under section 164 CrPC has stated that she is already married and engaged in litigation for divorce with her husband. She submits that she was already married and there is no question of alluring her for marriage as she was already married and established a relationship.

Further, it was submitted that only on that ground the case has been registered and even section 376(2)(n) of the IPC is not attracted.

She prayed for quashing the entire criminal proceeding.

The issue dealt with by the Court was that when two adults have established a relationship, particularly considering that the informant is a married woman, whether section 376(2)(n) IPC can be attracted or not.

The Court noted that 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

The Bench thus held, "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."

Further, the Court noted, "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."

Thus, the Court set aside the order taking cognizance pending before the Chief Judicial Magistrate, Deoghar, and remitted the matter back to the concerned Court for passing order afresh and disposed of the Petition.

In November, the Kerala High Court had quashed criminal proceedings against a man accused of raping a married woman on the promise of marriage (read report).

Cause Title – Manish Kumar Sharma v. The State of Jharkhand

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