Entitled to bail even if raped on pretext of marriage : Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION417 of the Indian Penal Code. Victim girl is aged about 24 years. She lodged First Information Report on 13 12 2021 wherein she contended that she is resident of village Gawara Tq. Zari Distt. Yavatmal. She completed her nursing course in the year 2017. The applicant is son of her cousin maternal uncle who resides at village Khapri Tah. Zari District Yavatmal. It is alleged that when she was doing nursing course at Pune she had come to her house at village Gawara. She had come for Diwali festival during that period the applicant called her and they started talking to each other Initially they were friends thereafter the applicant proposed her for marriage. Thereafter they developed love relationship She completed her nursing course in the year 2017. She joined Niga Hospital Pune. One day applicant came to Pune and met 2 19 aba 21 2022.odt her. He also suggested that they should marry. Thereafter in the month of January 2018 applicant came to see her. She was provided residence by the hospital. The applicant stayed with her during the night and had a sexual relations with her Thereafter the applicant used to have a sexual relations with Prior to lock down in the month of January 2020 the informant met with an accident. Hence she had been to her village Gawara. The applicant used to visit her house. He used to stay in her house. The applicant was serving in Railway Department. He used to attend his duty from the house of the complainant. It is alleged that the applicant used to tell the parents of complainant that he would marry with the complainant. He also assured that after marriage of his sister he would marry with the complainant. Therefore the parents of the complainant did not object the visits of applicant to their house. It is alleged that the applicant used to tell complainant that he would marry her and therefore the complainant used to allow him to have a sexual relations with her. It is alleged that due to the promise of marriage given by the applicant she used to have a sexual relations with On 24 11 2021 at about 1.00 p.m. applicant came to the house of the complainant and she was alone in the house. He had sexual relations with her. The applicant disclosed complainant that his parents are in hurry to settle his marriage and he requested her to send her parents to his 3 19 aba 21 2022.odt house for settlement of marriage. Accordingly on 08 12 2021 the parents of the complainant went to the house of the applicant. The father of the applicant told the parents of complainant that the applicant is not ready to marry with the complainant hence they return back. The applicant came to know that on 13 12 2021 the applicant has engaged with one girl with village Zamkhola thereafter she came to Police Station and lodged the report On the basis of the First Information Report it is contended that applicant is innocent. He had not committed any crime. There is delay in lodging the First Information Report. It is contended that the applicant never promised complainant to marry. It is contended that since last more than four years the applicant and complainant were in consensual relationship. The complainant was working as a nurse in hospital at Pune. It is contended that they were having relationship for long period. It is contended that applicant never had sexual relation with the complainant on the false promise of marriage. In fact applicant never gave any sought promise to Therefore relationship between applicant and complainant were consensual. Hence no offence is made out against the applicant. It is contended that the custodial interrogation of the applicant is not required and therefore it is prayed that the applicant be released on bail in anticipation of arrest Notice of this application was issued to learned A.P.P Learned A.P.P. has filed reply. It is contended that applicant on 4 19 aba 21 2022.odt the pretext of marriage had kept physical relations with the complainant. The complainant was referred to medical examination and report is submitted by Medical Officer. Her statement under Section 164 is also recorded. The applicant is absconding since the registration of crime. It is contended that on perusal of statement of victim it is clear that the applicant on misconception of fact obtained the consent of the complainant and had sexual relations with her. Therefore it is prayed that the offence is prima facie made out against the applicant and therefore application be rejected Perused the First Information Report Heard learned Counel for the applicant and learned A.P.P. on behalf of State. In order to appreciate the submissions of the applicant one has to see the contents of the First Information Report. It is alleged against the applicant that applicant is cousin maternal brother of the complainant The complainant and the applicant were having friendly relationship with each other since 2015 16. Thereafter applicant proposed the complainant for marriage in the year 2016. It is also contended in the First Information Report that the complainant completed her nursing course in the year 2017 and she was employed with Niga Hospital Pune. The applicant had met her and promise her to marry. Thereafter in the month of January 2018 applicant again met the complainant thereafter both of them stayed together in the residential house of the complainant. It is alleged that the applicant promised her to marry and thereafter had a sexual 5 19 aba 21 2022.odt relations with her and the said relations continued till January 2020. It is contended in the First Information Report that in the month of January 2020 the complainant met with an accident hence she went to her native place. The applicant was serving in Railway Department. He used to visit the house of the complainant and used to have sexual relations with her It is also alleged that the applicant had also given an understanding to the parents of the complainant that he would marry complainant after marriage of his sister. It is also alleged that till 24 11 2021 the applicant was having sexual relations with the complainant. It also appears from the First Information Report that the applicant had invited the parents of the complainant for settlement of his marriage. Accordingly the parents and other relatives of the complainant had been to the house of the applicant. But his father refused to settle the marriage of applicant with the complainant. Hence First Information Report came to be filed In view of the said allegations it is to be seen whether the applicant had a sexual relations with the complainant on the pretext of marriage. No doubt the complainant has specifically alleged in the First Information Report that when the applicant met her at Pune in the year 2017 he had proposed that they would marry. But it appears from the First Information Report that the applicant and the complainant had a love affair since 2016. But it appears that they had physical relations since January 2018 till November 2021. It also appears that the applicant used to reside in the house of the complainant at native place and used to have 6 19 aba 21 2022.odt sexual relations. The said relationship were known to the parents of the complainant. From the said averments in the First Information Report the important features emerges as Once the relation between applicant and the victim who is the complainant was of a consensual nature both of them were in the relationship for about four years. The applicant had expressed disinclination to marry the complainant which led to the registration of First Information Report. Therefore it can be said that though there was promise of marriage one has to see whether the said promise was false since its inception On perusal of the First Information Report it appears that it does not on its face indicate that the promise by applicant was false or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the First Information Report that when applicant promised to marry the complainant it was done in bad faith and intention to decisive her. The said fact is established from the long standing physical relationship between the parties. The applicant’s failure to fulfill his promise to marry cannot be construed to mean the promise itself was false. As soon as the parents of applicant refused the marriage proposal the First Information Report came to be filed The learned Counsel for the applicant submits that the alleged consent given by the complainant for physical relationship was not the result of alleged promise to marry by 7 19 aba 21 2022.odt the applicant. Therefore there was no misconception of fact in the mind of the complainant. To buttress his point he relied on the ratio laid down in Pramod Pawar Vs. State of Maharashtra reported in9 SCC 608 wherein the Apex Court on the facts of the said case has summarized the legal position as under 18. To summarise the legal position that emerges from the above cases the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry two propositions must be established. The promise of marriage must have been a false promise given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance or bear a direct nexus to the woman’s decision to engage in the sexual act In present case also it appears that the complainant alleged that the applicant had proposed her in the year 2016 thereafter they had sexual relationship with each other since 2018 to 2021 continuously. Therefore it can be said that even though it is presumed that the applicant had given promise to marry her there is no material on record to establish that the said promise was false since its inception The learned Counsel has also relied on the ratio laid down in the case of Sonu @ Subhash Kumar Vs. State of U.P reported in 2021 SCC OnLine SC 181 wherein the facts of the said case are similar to the facts of the present case. In the said 8 19 aba 21 2022.odt case also the appellant and the respondent were having physical relationship for long period. It was alleged therein that the applicant had given false promise of marriage. Hence the respondent continued her physical relationship with him and thereafter he refused to marry. In the facts of the said case the Apex Court has held that there was no material on record to establish that the false promise was given since inception. In present case also there are allegations of false promise but on perusal of the First Information Report it appears that the complainant and applicant were having physical relations with their consent. There may be promise of marriage given by the applicant but looking to the long standing physical relationship it does not mean that the applicant had sexual relations with the complainant on the basis of false promise of marriage. Therefore in view of the above case laws I am of the opinion that there is material on record to hold that the consent given by complainant for sexual relations with applicant was not simply based on promise to marriage. They had the consensual relationship Therefore the applicant is entitled for pre arrest bail. Hence I pass the following order Application is allowed In the event of arrest applicant Gulab S o Laxman Meshram in Crime No. 138 2021 registered with Patan Police Station District Yavatmal for the offences punishable under Sections 376 376(2)(n) 417 of the Indian Penal Code he be released on 9 bail on he furnishing P.R. and SD Bond of Rs.15 000 with one surety in the like amount 19 aba 21 2022.odt The applicant accused shall attend concerned Police Station every day in between 10.00 a.m. to 12.00 noon for the period of three weeks Jayashree.. (SURENDRA P. TAVADE J

Summary: A man accused of raping a woman is entitled to anticipatory bail upon being booked for charges of rape on the pretext of marrying the victim in future is upheld by the High Court of Judicature at Bombay through a single judge bench led by HONOURABLE MR. JUSTICE SP TAVADE in the case of Gulab Laxman Meshram v. State Of Maharashtra (CRIMINAL APPLICATION (ABA) NO. 21 OF 2022). Brief facts of the case are that the applicant allegedly promised to marry the complaining woman and had sexual intercourse with her for about four years before expressing that he did not want to marry her. When the woman learned of the applicant’s reluctance, she filed a complaint against him and made an (FIR) registered as per Section 376 of Indian Penal Code. Upon registration, the applicant applied for an anticipatory bail before this court. The counsel for applicant contended that he never promised the complainant to marry. The couple had a long-term relationship and the applicant had never had any sexual intercourse under the pretext of a promise of marriage.In fact, the applicant had never made any promises to the complainant. The counsel for the State contended that the applicant proposed  the woman for marriage in the year 2016 and they both stayed together at the complainant’s residence. The applicant promised to marry her and then had sexual intercourse with her until January 2020. The Bombay High Court held that failure to fulfill the promise of marriage did not mean that the promise itself was wrong. Consent between the parties for sexual relations was not only based on the promise of marriage, but also a consensual relationship.At first glance, it did not show that the promise of the applicant was wrong or that the complainant had sexual intercourse based on this promise. In the case of arrest, the court may release the applicant on bail with a bail of ₹15,000 and to report to the relevant Police Station every day for three weeks.