MP 1 APPLN1152_09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1152 OF 2009 Ashish Ramniwas Goswami ... Applicant Versus Ms Priti Narendra Saxena and another ... Respondents Mr. S. B. Shete with Mr. Irfan A. Shaikh, Advocates for the Applicant. Mrs. M. R. Tidke, APP for the State. CORAM : B. R. GAVAI, J. TUESDAY, JUNE 21, 2011 P. C. : Since the respondent No. 1 could not be served in pursuance of the notice issued by this Court, the respondent No. 1 was permitted to be served by way of publication vide order of this Court dated 7th February 2011 in Criminal Application No. 636 of 2010. Accordingly, a notice in daily 'Free Press Journal' and daily 'Navakal' was published on 16th March 2011. Inspite of the notice being served that this Court proposes to decide the matter, the respondent No. 1 has chosen not to remain present. Hence, Rule. Taken up for final hearing. 2. The applicant challenges the order dated 9th February 2007 passed by the learned Judicial Magistrate, First Class, Vashi in Criminal M Case No. 3 of 2007 of framing of the charges and prays for quashing the criminal proceedings initiated in the aforesaid criminal complaint. 3. The aforesaid criminal complaint came to be filed on the MP 2 APPLN1152_09 basis of the information given by the respondent No. 1 to the Nerul Police Station, Navi Mumbai. It is the allegation of the respondent-first informant that she came in acquaintance with the present applicant since both of them were working in Program Officer Management Information System in the Averd Society at Wadala. It is stated by her that both of them were residing alone in their respective flats. It is alleged that, therefore, intimation which resulted between them grew into love affair. It is alleged by the respondent No. 1 that once her friend namely Gabrial came from Delhi and both of them went to the flat of the applicant. The applicant put sindur in her forehead. It is further alleged that both of them were residing together as husband and wife, and that, they had physical relationship. It is also alleged that thereafter they went to the various places like Lonawala, Mahabaleshwar, Karnala, etc. It is alleged that thereafter when on 27th October 2005, they were returning from the office on the bike of the applicant, they met with an accident. Thereafter, the applicant was taken by his parents to Delhi. It is alleged that thereafter whenever she used to ask the applicant about their marriage, he used to tell that after the marriage of his elder brother, he would marry her. It is stated by her that even after the marriage of the applicant's elder brother, he kept on promising her. It is further alleged by her that thereafter the applicant told her that since her horoscope was not proper, the applicant's parents had refused to accept the complainant (respondent No. 1) as their daughter-in-law. In this background, the aforesaid complaint came to be filed. 4. Section 493 of the Indian Penal Code reads thus, “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 MP 3 APPLN1152_09 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.” It can thus be seen that to constitute an offence under Section 493, one of the necessary ingredients will be the deception caused by a man on a woman, in consequence of which she is led to believe that she is lawfully married to him while, in fact, they are not lawfully married. 5. Taking the complaint at its face-value, it would reveal that it is not even the allegation that any act which would amount to deceit by the applicant to believe that the first informant (respondent) was lawfully married to him is made in the complaint. On the contrary, the complainant herself states that they developed physical relationship out of consent and cohabited together out of their own free-will. There is not even a remote allegation regarding a deceit made by the applicant. A reliance on the following observations of the Full Bench of the Kerala High Court in the case of Moideenkutty Haji and others Vs. Kunhikoya and others reported in AIR 1987 Ker 184 could be placed in this respect: “4. Before passing on to the main issue; we shall consider the question which is exclusive to Cri. M.C. 17 of 1985. Section 493, I.P.C., is one of the offences relating to marriage. The section does not penalise mere cohabitation or sexual intercourse with a woman who is not lawfully married to him. The section is attracted only when certain other ingredients are also associated therewith. The section envisages the case when a man deceitfully induces a woman to have sexual intercourse with him causing her to believe that she is lawfully married to him. The essence of the section is therefore the deception caused by a man on a woman, in consequence of which she is led to believe that she is MP 4 APPLN1152_09 lawfully married to him while, in fact, they are not lawfully married. In order to establish deception there must first be allegations that the accused falsely induced her to believe that she is legally wedded to him. In the complaint in this case there is no allegation of any such deception or inducement. In a case where both the man and woman fully knew that they are not husband and wife and no ceremony of marriage took place between them, there is no question of one of them believing otherwise. Even if the entire allegations in the complaint are taken as true the section is not being attracted. The allegation is that though they are not husband and wife they had sexual union during late hours in the night for a pretty long time. What is alleged in the complaint, is only a promise to marry in future.” 6. It is further informed that now the applicant as well as the complainant are married and residing with their respective life partners. 7. In that view of the matter, I find that the application deserves to be allowed. Rule is, therefore, made absolute in terms of prayer clause (b). 8. Leave to amend. Amendment to be carried out forthwith. (B. R. GAVAI, J)