Mere Refusal To Marry After Sexual Relations Not Offence of Cheating : Bombay High Court

Justice Anuja Prabhudessai observed that in the instance case the couple had indulged in sexual relations for over three years; the woman's testimony did not indicate that she was under a misconception of a promise of marriage nor was there evidence to show the man didn't intend to marry her since the very beginning.

"In the absence of evidence to prove that the prosecutrix had consented for physical relationship on a misconception of fact, as stipulated under Section 90 of IPC, the mere refusal to marry would not constitute offence under Section 417 of the IPC."

Observing thus, the court set aside the trial court's order convicting him for cheating the girl under section 417 of the IPC and sentencing him to a year in prison along with a fine of Rs. 5000.

In an FIR registered in 1996, the woman alleged that the accused had sexual relationship with her with promise of marriage, and subsequently declined to marry her. The man was then booked for rape and cheating/ fraud under Sections 376 and 417 of the IPC.

After the trial, the man was acquitted of rape but punished for cheating/fraud. While the man approached the High Court in appeal against his conviction, the state did not contest the non-applicability of section 376 of the IPC against him.

In its order, the court relied on a catena of judgments regarding what would constitute "fraud", "consent" and if a man can be held guilty of fraud just because he refused marriage.

The court relied heavily on the apex court's judgement in Maheshwar Tigga Vs. State of Jharkhand, (2020) 10 SCC 108 in which the apex court held that that under Section 90 of IPC, a consent given under a misconception of fact is no consent in the eye of the law. But the misconception of fact has to be in proximity with the offence and cannot be spread over a period of four years.

Therefore, the court observed thus in the present case.

"The evidence on record indicates that the prosecutrix and the accused were known to each other. They had indulged in sexual relationship for a period of over three years. The evidence of PW1-prosecutrix does not indicate that she had sexual relationship with the accused under misconception of fact, with regard to the promise of marriage or that her consent was based on fraudulent misrepresentation of marriage. There is no evidence on record to indicate that since the inception accused did not intend to marry her."'

Case Title: Kashinath Narayan Gharat vs The State of Maharashtra

Appearances: Vrishali Raje for the Appellant; Mr. S.V. Gavand, APP for Respondent -State

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