Promise of marriage is not a promise simplicitor if it contingent on dissolution of First marriage, doesn’t amount to Cheating: Calcutta High Court

J&L LNN March 22, 2023

Promise of marriage is not a promise simplicitor if it contingent on dissolution of First marriage, doesn’t amount to Cheating: Calcutta High Court

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June 7, 2023
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Promise of marriage is not a promise simplicitor if it contingent on dissolution of First marriage, doesn’t amount to Cheating: Calcutta High Court

The High Court of Calcutta envisaged that in order to invoke the Section 417/376 of the IPC prosecution must prove that the accused person induce the victim for sexual relationship. Such inducement based on the concealment of true facts from the inception of relationship which results into deception.

BRIEF FACTS OF THE CASE

As per the statement made by victim to officer-in-charge of Pragati Maidan Police Station, she met the accused Mr. Gaurav Bir Basnet the Front officer Manager, ITC Sonar Kolkata while appearing in an interview with him. Further she has stated that when they both met for the second time Mr. Basnet depicted himself as unhappy man who has been living separately from his wife on mutual agreement and enduring the trauma of a virtually broken marriage. Soon they get into a relationship and start living together. Everyone in a vicinity thought they are a married couple. Problem arose when Mr. Basnet refused to seek divorce from his wife. Upon this victim felt cheated by the accused person and lodged the FIR. After the submission of chargesheet learned Trial Court has booked the accused under Section 417/376 of the IPC.

CONTENTION OF APPELLANT

Learned Counsel for the Appellant while assailing the impugned judgment has submitted that Mr. Basnet did not conceal any fact related to his personal life. Further he has submitted that victim being an adult consciously took the decision to live together with the accused person. She knew that the man was married and fathered a child. Therefore, there is no reason to hold that she took the decision to stay with the accused person under any misconception of fact. There is no ingredient of offence within the meaning of Section 415 of the I.P.C.

CONTENTION OF THE VICTIM

Learned Counsel for the victim presented facts before the court that the lady victim took decision after the promise made by accused in respect of the mutual divorce. Later he went back on his words and cheated the victim.

CONTENTION OF THE STATE

Ms. Sujata Das, learned Counsel representing the State also supports the judgement impugned. According to Ms. Das, there was breach of promise resulting into deception on the part of accused person.

HON’BLE COURT OBSERVATIONS

While emphasizing on Section 415 of the IPC i.e. ‘Cheating’, Hon’ble Court held that,

One of the essential ingredients of cheating is deception which must precede and thereby induce the other person and thereby lead into error by causing a person to believe what is false or disbelieve what is true.

Section 415 of I.P.C. has two parts, in the first part inducement must be dishonest or fraudulent and in the second part it should be intentional. In both the cases, deception is common element.

In this case prosecution is to prove that promise to marry made by the accused person, for inducing the victim to have sexual relation with him was false, since the very inception when he made such promise.

Further it was observed by the Hon’ble Court from facts of the case, it seems clear that victim was very well aware about the marital status of the accused and also about his daughter child. Therefore promise made by the accused was not the promise simplicitor it was contingent on dissolution of marriage. Hence the uncertainty for the dissolution of 1^st marriage of the appellant was there from the very starting. Victim, consciously accepted such risk of uncertainty. The ‘changed man’ could not go for divorce. Therefore, the promise of marriage, after divorce, by itself does not amount to cheating.

Hon’ble Court concluded that prosecution has not been able to prove that since the inception the accused person had this evil design to exploit the victim both financially and sexually. Learned Trial Court got swayed by extraneous issues and committed error in recording the order of conviction which should not be allowed to remain in force and should be set aside. The accused person is found not guilty to charge under Section 417 of I.P.C. He be set at liberty.

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