Refusing to marry after engaging in a sexual relationship does not amount to cheating

In the case of Kashinath Narayan Gharat v. The State of Maharashtra (2021) Cr.A. 119/ 1999, the single-judge bench of Justice Anuja Prabhudessai of the Bombay High Court heard the challenge by the petitioner against the order of the Additional Sessions Judge, given on February 19, 1999, wherein the petitioner was accused under Section 417 (Punishment for Cheating) of the Indian Penal Code, 1860 with rigorous punishment for one year (along with the payment of Rs. 5,000 as fine). The facts of the case are as follows:

  1. That the prosecutrix lodged an FIR against the petitioner because he allegedly had sexual relations with the prosecutrix under the promise of marrying the prosecutrix.
  2. That the FIR was filed under Sections 376 (Punishment for Rape) and 417 of the Indian Penal Code, 1860 after the petitioner refused to marry the prosecutrix.
  3. That P.H.C. Vishwas Bhosale filed a charge sheet against the petitioner after recording the statements of the witnesses and conducting the medical examination of the prosecutrix.
  4. That the petitioner (the accused) plead not guilty.
  5. That the Additional Sessions Judge convicted the petitioner after appreciating and analysing the pieces of evidence under Section 417 whilst acquitting the petitioner under Section 376.

The learned counsel for the petitioner, Ms. Vrishali Raje held that the prosecutrix had consensual sexual relations with the petitioner for 3 years, wherein the examination of the witnesses revealed that there was a love affair between the prosecutrix and the petitioner. The learned counsel for the petitioner added that the conviction of the petitioner under Section 417 stemmed from the accused’s refusal to marry the prosecutrix. In the case of Pramod Suryabhan Pawar v. The State of Maharashtra (2019) 9 SCC 608, the court held that the breach of a promise does not amount to a false promise because a false promise is a promise made by the promisor in bad faith with no intention of fulfilling the said promise at any given point of time, wherein in cases of obtaining the consent of a woman for sexual relations under the promise of marrying the said woman, the said promise must bear a direct nexus to the woman’s decision to engage in the sexual act according to the court. In the case of Maheshwar Tigga v. The State of Jharkhand (2020) 10 SCC 108, the court tested Section 90 in the light of a woman consenting to a sexual act based on fraudulent misrepresentation of marriage by the male counterpart, wherein it held that the misconception of fact (the false promise) must lie proximally to the time of the occurrence of the consented sexual act for it to be construed as a fraudulent misrepresentation of marriage.

The bench observed that the petitioner and the prosecutrix knew each other for the last three years whilst engaging in a sexual relationship for the same duration; additionally, the bench held that the prosecutrix did not engage in a sexual relationship with the petitioner under misconception of fact by the petitioner based on fraudulent misrepresentation of marriage because the sexual relationship between the two was spread over multiple years. The bench submitted that there is no evidence to prove that the sexual relationship between the petitioner and the prosecutrix occurred under the pretext of marriage, wherein the bench held that the refusal to marry does not amount to an offence under Section 417. The bench quashed the order of the Additional Sessions Judge whilst acquitting the petitioner of all charges.

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