While deciding the instant case, the bench comprising of Mrs. Mridula Bhatkar, J. held that every breach of promise to marry cannot be said to be either a cheating or rape. The Court further held that to keep physical relationship or not is a choice of both the parties. The Court after listening the arguments from both sides, stated that even if there is bonafide promise to marry and the girl chooses to keep sexual relationship with that person and if a boy withdraws his promise, as they are not psychologically compatible with each other, then it cannot bring that particular act within the purport of offence under section 375 of IPC i.e., rape.
The Court decided that anticipatory bail can be granted in such cases after considering all the requisite factors. Where a couple is in love with each other, they may have sexual relationship. Realizing that they are not compatible and sometimes love between the parties is lost and their relationship dries gradually, then earlier physical relationship cannot said to be rape. The Court further observed that marriage is not only based on physical compatibility but also on emotional and psychological bonding. In the present case, the four years sexual relationship on the promise to marry cannot be considered as rape if such promise is breached because a major and educated girl is expected to know the demand of her body and to understand the consequences of getting into sexual relationship.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL ANTICIPATORY BAIL APPLICATION NO. 27 OF 2014
WITH
CRIMINAL INTERVENTION APPLICATION NO. 179 OF 2014
in the matter between
Mahesh Balkrishna Dandane
vs.
The State of Maharashtra
Intervener/
Ori. Complainant
Ms. Sonali Alfred Jadhav
CORAM : MRS. MRIDULA BHATKAR, J.
DATE : 12th March, 2014.
Heard. The Application for intervention is allowed.
2.
Application No. 27 of 2014 is moved for anticipatory bail under
section 438 of Cr. P The complainant is a lady who has lodged a
.C.
complaint under section 420, 406, 376, 323, 506(2) of IPC. The crime
is registered at C.R. No. I321 of 2013 with Upanagar Police Station,
Nashik.
3.
It is the case of the prosecution that the complainant and
applicant/accused both were having an affair and there was a promise
by the applicant/accused to marry the complainant. The complainant,
therefore, readily kept sexual relationship with the applicant. It is the
case of the complainant that since 1999 the complainant knew
applicant/accused and in November, 2006 they had sexual interaction.
At the relevant time the applicant/accused has told her that he wanted
to marry her and therefore, the complainant did not object to have
sexual relations with him at different places. In the year 200809 the
applicant avoided to talk about their marriage and therefore, she
consumed tranquilizer and was admitted in the hospital. Thereafter,
they continued to meet and maintained their physical relationship. On
6th December, 2013 the complainant came across a photograph of the
applicant/accused. The said photograph was taken while performing
prewedding rituals and therefore, she arrived at Nashik in the evening
on the same day and found that the applicant/accused has performed
marriage with some other girl. The complainant, therefore, lodged
complaint on 10th December, 2013 at Khondva Police Station. Pursuant
to that, police registered FIR at C.R. No. I321/2013 at Upnagar Police
Station, Dist. Nashik. Hence, the applicant filed this application for
anticipatory bail.
4.
The learned counsel for the applicant/accused submitted that the
applicant/accused has neither cheated nor raped the complainant. He
submitted that he never promised complainant to marry her as they
belonged to different religion. He further submitted that though there
was contacts between the parties, the complainant on 1 st July, 2013 had
knowledge that the applicant was engaged with other girl. The learned
counsel further submitted that the complainant attended the wedding
of the applicant/accused. The charges made by the complainant are
false. The learned counsel submitted that on 21 st May, 2011 the
applicant has lodged complaint against the complainant with Sr. Police
Inspector, Nashik Road Police Station where he has expressed
ig
apprehension that the complainant would likely to commit suicide and
falsely implicate him in the offence. The learned counsel further
submitted that in the said letter, the applicant/accused has mentioned
that the complainant has forced him on previous date that he should
marry her and threatened him that she would end her life. He further
submitted that the applicant/accused is innocent and he never had
intention to commit any offence as alleged. The learned counsel
further submitted that the complainant and applicant/accused both
have secured degree in law. The applicant is practicing advocate and
the complainant was working as a legal officer. The learned counsel
further submitted that whatever acts are done are by consent and with
understanding between two persons for which the applicant/accused is
not to be blamed alone. He further submitted that physical relationship
between the parties was noncommittal consensual relationship.
5.
Learned APP and counsel for the complainant opposed the
application for anticipatory bail on the ground that the
applicant/accused has cheated the complainant by giving false promise
to marry her. The applicant/accused has induced her to keep sexual
relations with him and deceived her. It is further submitted by the
learned counsel for the complainant that the complainant was not
aware about the marriage of the applicant/accused with other girl. The
learned counsel further submitted that the complainant conceded
sexual relationship, as she was induced and promised by the
applicant/accused to marry her. Thus her consent was obtained
fraudulently by the applicant/accused and has misrepresented her that
he would marry her. The learned counsel for the complainant further
relied on many photographs showing physical intimacy of the
applicant/accused and complainant. He relies on SMS sent by the
applicant to the complainant on 8 th December, 2013 at 12.27 at night
after marriage that he wanted to keep contact with her. He further
submitted that the promise of marriage was given from 2011 by the
applicant when the complainant asked the applicant to marry and the
same is mentioned in the FIR.
6.
The case is based on promise to marry and fall out of brokeup
relationship. Nowadays keeping sexual relationship while having an
affair or before marriage is not shocking as it was earlier. A couple may
decide to experience sex. Today especially in metros like Mumbai,
Pune etc., the Society is becoming more and more permissive. Though
unlike western countries, we have social taboo and are hesitant to
accept free sexual relationship between unmarried couples or
youngsters as their basic biological need; the Court cannot be oblivious
to a fact of changing behavioural norms and patterns between man
and woman relationship in the Society so also a fact of ground realities
and of late marriages. A major and educated girl is expected to know
demand of her body and to understand the consequences of getting
into sexual relationship. Today the law acknowledges live in
relationship. The law also acknowledges a woman's right to have sex,
woman's right to be a mother or woman's right to say no to
motherhood. Thus, having sexual relationship with a man whether is
her conscious decision or not is to be tested independently depending
on the facts and circumstances of each and every case and no straight
jacket formula or any kind of labelling can be adopted.
7.
For example, an uneducated girl from a very poor strata of a
Society is induced to keep physical relationship on promise to marry by
a person from a higher class, then there may be a possibility of
prosecution under section 376 of IPC. Similarly, if a man suppresses his
first marriage and keeps physical relationship with a girl promising to
marry her or subsequently marries then also it can be said that consent
is adopted fraudulently, therefore, he can be prosecuted under section
8.
376 of IPC.
However, every breach of promise to marry cannot be said to be
either a cheating or rape. A couple in love with each other may be
having sexual relationship and realize that they are not compatible and
sometimes love between the parties is lost and their relationship dries
gradually, then earlier physical contacts cannot be said as rape. A
ig
marriage cannot be imposed, as a search of life partner depends not
only on physical compatibility but also on emotional, psychological
bonding. It is a matter of choice related to individual's notions of
suitability, emotional, psychological comfort and biological
requirement. Thus while granting anticipatory bail, all these factors
are required to be considered.
9.
In the present case, both the applicant/accused and complainant
are graduated in law. A fact of their sexual relationship is admitted.
Their relations were going on for a long period i.e. from 2009 till 2013.
However, there was a letter written by the applicant/accused in the
year 2011 wherein he has mentioned that the complainant is forcing
him to marry as she tried to commit suicide. Thereafter also their
physical relationship continued. The photocopy of SMS sent on 1 st July,
2013 prima facie discloses that complainant had an idea that
applicant/accused has decided to marry other girl. Moreover, to keep
physical relationship or not is a choice of both the parties. Prima facie
it does not appear from the record that the complainant was either
forced to keep sexual relationship or she was really induced to such an
extent that she has no other option but to keep physical relationship
with the applicant/accused. Even though if at all there is bonafide
promise to marry and the girl chooses to keep physical relationship
with that persons and if a boy withdraws his promise, as they are not
psychologically comfortable with each other, then it cannot bring that
particular act within the purport of offence under section 375 of IPC.
The complainant is an educated girl and it shows that it was her
conscious decision to keep sexual relations with him. Prima facie at this
stage, possibility of noncommittal, consensual relationship cannot be
denied.
10.
In this case it is submitted by the counsel for the complainant
that the complainant is pregnant of 14 to 16 weeks. However, it is her
choice to be a mother or not. If child is born, then for his rights, the
complainant may adopt other legal recourse before appropriate forum.
The submissions of learned counsel for the complainant that custodial
interrogation of applicant/accused is required for DNA test cannot be
appreciated, as the applicant/accused can be directed to go for DNA
test. In view of this, Application is allowed with following directions:
O R D E R
(i) The applicant be enlarged on bail on furnishing P
.R. Bond in the
sum of Rs. 25,000/ with one or two sureties in the like amount.
(ii)The applicant shall cooperate the police and also give blood
sample for DNA test.
(iii)The applicant shall not contact the complainant and shall not
The Application is disposed of on above terms.
11.
pressurize her.
(MRS. MRIDULA BHATKAR, J.)
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