When offence of marital Rape is not made out?

It is, therefore, that we shall now examine the present
controversy, with reference to Sections 493 and 494 of the Indian
Penal
Code,
which
admittedly
survive.
The
contention
of
the
learned counsel for the respondent, with reference to Section 493
of the Indian Penal Code was, that the ingredients of the offence
under Section 493 were not made out, even if the factual position,
as has been asserted by the appellant, is accepted.
Section 493 of
the Indian Penal Code is being extracted hereunder:
“493. Cohabitation caused by a man deceitfully
inducing a belief of lawful marriage.—Every man
who by deceit causes any woman who is not lawfully
married to him to believe that she is lawfully
married to him and to cohabit or have sexual
intercourse with him in that belief, shall be
punished with imprisonment of either description
for a term which may extend to ten years, and
shall also be liable to fine.”
A perusal of the above-extracted provision reveals, that to satisfy
the ingredients thereof, the man concerned should
have deceived
the woman, to believe the existence of matrimonial ties with her.
And based on the aforesaid belief, the man should have cohabited
with her.
The question to be determined on the basis of the
factual position, as has been noticed hereinabove, is whether in
the facts and circumstances of this case, it is possible to accept
such deceit, at the hands of the respondent, even if it is accepted
for the sake of arguments, that cohabitation continued between the
parties between 08.01.1994 till 23.06.1994, i.e., from the date
when the respondent was granted an ex-parte decree of divorce (by
the Additional District Judge, Chandigarh), till the date when the
respondent married Sunita Rani. We are of the considered view, that
with the setting aside of the ex-parte decree of divorce dated
08.01.1994 (on 19.02.1996), it cannot be accepted, that there was
any break in the matrimonial relationship between the parties.
Even the complaint filed by the appellant under Section 376 of the
Indian
Penal
Code
was
not
entertained
(and
the
respondent
was
discharged), because it came to be concluded, that the matrimonial
ties between the appellant and the respondent were restored, with
the setting aside of the ex-parte decree of divorce, as if the
matrimonial relationship had never ceased. In sum and substance
therefore,
consequent
upon
the
passing
of
the
order
dated
19.02.1996 (whereby the Additional District Judge, Chandigarh, set
aside the ex-parte decree dated 08.01.1994), the matrimonial ties
between the appellant and the respondent, will be deemed to have
subsisted during the entire period under reference (08.01.1994 to
23.06.1994).
In fact, the accusation of the appellant, on the
aforesaid premise, in the first complaint filed by the appellant
against the respondent (under Section 376 of the Indian Penal Code)
was
not
entertained,
and
the
because of the above inference.
respondent
was
discharged,
just
For exactly the same reason, we
are satisfied that the charge against the respondent is not made
out, under Section 493 of the Indian Penal, because the respondent
could not have deceived the appellant of the existence of a “lawful
marriage”,
when a
lawful
marriage
indeed
existed
between
the
parties, during the period under reference.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.457 OF 2008
RAVINDER KAUR V ANIL KUMAR
Dated;APRIL 09, 2015.

The appellant (Ravinder Kaur) and the respondent (Anil
Kumar) got married on 14.08.1991. Soon thereafter, the respondent
preferred a petition seeking divorce from the appellant before the
Additional District Judge, Ropar.
Having received summons in the
above-mentioned case, the appellant entered appearance before the
Additional District Judge, Ropar, on 08.10.1992.
On the following
day, i.e., on 09.10.1992, the respondent withdrew the petition
filed by him under Section 13 of the Hindu Marriage Act, 1955.
The
respondent
filed
a
second
divorce
petition
on
30.04.1993, under Section 13 of the Hindu Marriage Act, 1955, on
the same factual premise and grounds (as the earlier petition),
before the Additional District Judge, Chandigarh.
Proceedings were
2
conducted in the second divorce petition, in the absence of the
appellant, and an ex-parte decree of divorce was granted to the
respondent, on 08.01.1994.
this
Court,
that
the
It was the case of the appellant before
respondent
did
not
inform
her,
that
the
matrimonial ties between the parties had come to an end, by the
decree of divorce dated 08.01.1994. And under the impression, that
the marriage was subsisting, he continued his conjugal relationship
with the appellant, as her husband, by deception.
It was also the case of the appellant, that on 23.06.1994
the respondent married Sunita Rani.
It was, thereupon, that the
appellant became aware (on 23.06.1994 i.e., on the occasion of his
marriage with Sunita Rani) about the fact, that the respondent had
been granted an ex-parte decree of divorce on 08.01.1994 (by the
Additional District Judge, Chandigarh).
Within six days, of her
coming to know, about the above ex-parte decree of divorce, the
appellant preferred an application, for setting aside the said
ex-parte
decree,
on
29.06.1994.
The
same
was
allowed
Additional District Judge, Chandigarh, on 19.02.1996.
by
the
In sum and
substance, therefore, the matrimonial ties between the appellant
and
the
respondent
came
to
be
restored,
as
if
the
marital
relationship had never ceased.
Based on the fact, that the respondent had continued the
sexual
relationship
with
the
appellant,
for
the
period
from
08.01.1994 (when the ex-parte decree of divorce was passed) till he
married
Sunita
Rani
on
23.06.1994,
the
appellant
preferred
a
complaint before the Judicial Magistrate 1st Class, Kharar, under
Section 376 of the Indian Penal Code.
It is not a matter of
3
dispute,
that
the
respondent
was
discharged
from
the
above
proceedings. In fact, no trial came to be conducted in furtherance
of the above complaint made by the appellant.
The above order of
discharge, was assailed by the appellant, before the High Court of
Punjab and Haryana, at Chandigarh (hereinafter referred to as `the
High Court').
10.07.1997.
order
passed
The High Court affirmed the order of discharge, on
Dissatisfied with the order of discharge, as also, the
by
the
High
Court,
the
appellant
approached
this
Court. This Court declined to interfere with the above orders.
On the same factual premise, as has been noticed in the
foregoing paragraphs (wherein the appellant had filed a complaint
for initiation of proceedings under Section 376 of the Indian Penal
Code), the appellant filed a second complaint, this time accusing
the respondent of offences under Sections 493, 494, 495, 496, 420,
506 read with Section 120-B of the Indian Penal Code.
The Judicial
Magistrate 1st Class, Kharar, did not entertain the aforementioned
complaint filed by the appellant, and dismissed the same vide an
order dated 27.11.2002.
Dissatisfied with the aforesaid order, the
appellant preferred a revision petition, assailing the above order
dated
27.11.2002,
before
the
Sessions
Judge,
Roopnanagr.
The
aforesaid revision petition was dismissed on 04.09.2003. The order
dated 04.09.2003 was assailed by the appellant before the High
Court,
through
Criminal
Misc.No.50496-M
of
2003.
The
aforesaid
Criminal Miscellaneous Petition, was dismissed by the High Court on
10.01.2007.
The order passed by the High Court on 10.01.2007 is a
subject matter of challenge through the instant appeal.
4
During the course of hearing, learned counsel for the
appellant very
appellant in
fairly
the
asserted,
complaint,
that
which
is
the
a
claim raised by the
subject matter of the
present consideration, can be pressed against the respondent, only
with reference to the accusations levelled by the appellant, under
Sections 493 and 494 of the Indian Penal Code.
It was, therefore,
that the instant controversy will be examined by us, limited to the
allegations made by the appellant, under Sections 493 and 494 of
the Indian Penal Code only.
Learned counsel for the respondent, while opposing the
prayer made on behalf of the appellant vehemently contended, that
the
present
proceedings
were
not
maintainable
against
the
respondent, in the light of Section 300 of the Criminal Procedure
Code.
In this behalf, it was the submission of the learned counsel
for the respondent, that it was not open to the appellant to raise
a claim against the respondent, so as to subject the respondent to
a trial again, on the same facts as in the earlier complaint, even
for an offence, other than the one, with reference to which the
earlier compalint was filed (under Section 376 of the Indian Penal
Code). To examine the veracity of the contention raised by the
learned counsel for the respondent, Section 300 of the Code of
Criminal Procedure is being extracted hereunder:
“300. Person once convicted or acquitted not to
be tried for same offence.
(1) A person who has once been tried by a Court of
competent jurisdiction for an offence and convicted
or acquitted of such offence shall, while such
conviction or acquittal remains in force, not be
liable to be tried again for the same offence, nor
on the same facts for any other offence for which a
5
different charge from the one made against him
might have been made under sub- section (1) of
section 221, or for which he might have been
convicted under sub-section (2) thereof.
(2) A person acquitted or convicted of any offence
may be afterwards tried, with the consent of the
State Government, for any distinct offence for
which a separate charge might have been made
against him at the former trial under sub- section
(1) of section 220.
(3) A person convicted of any offence constituted
by any act causing consequences which, together
with such act, constituted a different offence from
that of which he was convicted, may be afterwards
tried for such last-mentioned offence, if the
consequences had not happened, or were not known to
the Court to have happened, at the time when he was
convicted.
(4) A person acquitted or convicted of any offence
constituted by any acts may, notwithstanding such
acquittal or conviction, be subsequently charged
with, and tried for, any other offence constituted
by the same acts which he may have committed if the
Court by which he was first tried was not competent
to try the offence with which he is subsequently
charged.
(5) A person discharged under section 258 shall not
be tried again for the same offence except with the
consent of the Court by which he was discharged or
of any other Court to which the first- mentioned
Court is subordinate.
(6) Nothing in this section shall affect the
provisions of section 26 of the General Clauses
Act, 1897, (10 of 1897 ) or of section 188 of this
Code.
Explanation.- The dismissal of a complaint, or the
discharge of the accused, is not an acquittal for
the purposes of this section.”
Having perused Section 300, we are satisfied, that the
submission advanced at the hands of the learned counsel for the
respondent, namely, that Section 300 of the Criminal Procedure
Code, will be an embargo to obstruct the right of the appellant to
6
file a second complaint against the respondent, is not justified.
Our above determination is based on the fact, that the respondent
had not been tried, in furtherance of the previous complaint made
by the appellant, under Section 376 of the Indian Penal Code. The
contention the
of
the
learned
counsel
for
the
appellant,
that
respondent had been discharged in furtherance of the complaint made
by the appellant, without any trial having been conducted against
him (the respondent), was not disputed. Based on the above factual
contention, learned counsel for the appellant had placed emphatic
reliance, on the explanation under Section 300 of the Criminal
Procedure Code. The explanation relied upon, clearly mandates that
the dismissal of a complaint, or the discharge of an accused, would
not be construed as an acquittal, for the purposes of this Section.
In this view of the matter, we are in agreement with the contention
advanced at the hands of the learned counsel for the appellant. We
are
of
the
considered
view,
that
proceedings
in
the
second
complaint would not be barred, because no trial had been conducted
against the respondent, in furtherance of the first complaint.
Having so concluded, it emerges that it is open to the appellant,
to
press
the
accusations
levelled
by
her,
through
her
second
complaint, referred to above.
It is, therefore, that we shall now examine the present
controversy, with reference to Sections 493 and 494 of the Indian
Penal
Code,
which
admittedly
survive.
The
contention
of
the
learned counsel for the respondent, with reference to Section 493
of the Indian Penal Code was, that the ingredients of the offence
under Section 493 were not made out, even if the factual position,
7
as has been asserted by the appellant, is accepted.
Section 493 of
the Indian Penal Code is being extracted hereunder:
“493. Cohabitation caused by a man deceitfully
inducing a belief of lawful marriage.—Every man
who by deceit causes any woman who is not lawfully
married to him to believe that she is lawfully
married to him and to cohabit or have sexual
intercourse with him in that belief, shall be
punished with imprisonment of either description
for a term which may extend to ten years, and
shall also be liable to fine.”
A perusal of the above-extracted provision reveals, that to satisfy
the ingredients thereof, the man concerned should
have deceived
the woman, to believe the existence of matrimonial ties with her.
And based on the aforesaid belief, the man should have cohabited
with her.
The question to be determined on the basis of the
factual position, as has been noticed hereinabove, is whether in
the facts and circumstances of this case, it is possible to accept
such deceit, at the hands of the respondent, even if it is accepted
for the sake of arguments, that cohabitation continued between the
parties between 08.01.1994 till 23.06.1994, i.e., from the date
when the respondent was granted an ex-parte decree of divorce (by
the Additional District Judge, Chandigarh), till the date when the
respondent married Sunita Rani. We are of the considered view, that
with the setting aside of the ex-parte decree of divorce dated
08.01.1994 (on 19.02.1996), it cannot be accepted, that there was
any break in the matrimonial relationship between the parties.
Even the complaint filed by the appellant under Section 376 of the
Indian
Penal
Code
was
not
entertained
(and
the
respondent
was
discharged), because it came to be concluded, that the matrimonial
ties between the appellant and the respondent were restored, with
8
the setting aside of the ex-parte decree of divorce, as if the
matrimonial relationship had never ceased. In sum and substance
therefore,
consequent
upon
the
passing
of
the
order
dated
19.02.1996 (whereby the Additional District Judge, Chandigarh, set
aside the ex-parte decree dated 08.01.1994), the matrimonial ties
between the appellant and the respondent, will be deemed to have
subsisted during the entire period under reference (08.01.1994 to
23.06.1994).
In fact, the accusation of the appellant, on the
aforesaid premise, in the first complaint filed by the appellant
against the respondent (under Section 376 of the Indian Penal Code)
was
not
entertained,
and
the
because of the above inference.
respondent
was
discharged,
just
For exactly the same reason, we
are satisfied that the charge against the respondent is not made
out, under Section 493 of the Indian Penal, because the respondent
could not have deceived the appellant of the existence of a “lawful
marriage”,
when
a
lawful
marriage
indeed
existed
between
the
parties, during the period under reference.
So far as the surviving provision, namely, Section 494 of
the
Indian
Penal
Code
is
concerned,
the
same
is
compoundable.
During the course of hearing, on 08.04.2015, we enquired from the
learned
counsel
for
the
appellant,
whether
the
appellant
was
interested in compounding the cause, since we were made aware of
the fact, that the respondent in the meantime had fathered two
children, from Sunita Rani.
an
oral
assertion
made
at
This proposal was made by the Court on
the
behest
of
the
learned
counsel
representing the respondent, that the appellant had also re-married
in the meantime, and that, she had also begotten one son out of her
9
second marriage.
Having
obtained
instructions,
learned
counsel
for
the
appellant very fairly acknowledged, the second marriage of the
appellant. He also acknowledged, the factum of the appellant having
begotten
a
son,
from
her
second
marriage.
In
the
changed
scenario, learned counsel for the appellant informed this Court,
that the appellant had instructed him, that a request may be made
to the Court, that the appellant would have no objection to the
compounding of the offence under Section 494 of the Indian Penal
Code, in terms of Section 320 of the Code of Criminal Procedure,
with the consent of this Court.
The contention of the learned
counsel for the appellant however was, that the appellant should be
awarded
reasonable
cost,
while
compounding
the
offence
under
Section 494 of the Indian Penal Code.
Having given our thoughtful consideration to the facts
and circumstances of this case, specially the factual position as
has emerged after the ex-parte decree of divorce dated 08.01.1994
(passed by the Additional District Judge, Chandigarh) was set aside
on 19.02.1996, we are of the view, that the best course for the
parties is to settle their
dispute amicably.
Section 320 of the
Criminal Procedure Code is an avenue available to the parties, for
such resolution.
In view of the consent expressed by the appellant
to this Court through her counsel, we hereby direct the compounding
of complaint made by the appellant with reference to Section 494 of
the Indian Penal Code.
We direct the respondent to pay a sum of
Rs.5 lakhs, as compensation to the appellant.
The respondent shall
deposit the aforesaid amount in this Court within two months from
10
today.
It shall be open to the appellant to move an application to
the Registry of this Court, to withdraw the aforesaid amount.
The appeal is disposed of in the above terms.
..........................J.
(JAGDISH SINGH KHEHAR)
..........................J.
(S.A.BOBDE)
NEW DELHI;
APRIL 09, 2015.

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