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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 1225/2024
PANKAJ BIDHURI .....Petitioner
Through: Mr. Ramit Malhotra and Mr. Vikas
Bakshi, Advocates.
versus
STATE NCT OF DELHI .....Respondent
Through: Mr. Utkarsh, APP for the State with
Mr. Aayush Kumar Natrajan, Mr.
Hiralal, Ms. Neeru Dua, Mr. B. L.
Mittal and Mr. Aash Mohammd,
Advocates with SI Usha Yadav, P.S.:
Mehrauli.
Ms. Yashima Sharma, Mr. Zubair
Hanifi, Mr. Saba Tasleem and Mr.
Mustafa Alam, Advocates for the
complainant.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
O R D E R
% 30.08.2024
As recorded in order dated 05.08.2024, this court was inclined
to examine whether the concept of a promise of
‘false marriage’,
which attracts the offence of rape under section 375 of the Indian
Penal Code, 1860 would also include a promise of marriage
(‘IPC’),
which is fulfilled but results in a marriage which is void, voidable or
otherwise untenable in law.
2. Notice on this petition was issued on 08.04.2024.
3. Status Report dated 13.05.2024 has been filed.
4. Nominal Roll dated 29.04.2024 has also been received from the Jail
Superintendent.
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5. The court has heard Mr. Ramit Malhotra, learned counsel appearing
for the petitioner; Mr. Utkarsh, learned APP appearing for the State;
and Ms. Yashima Sharma, learned counsel appearing for the
complainant/prosecutrix. Learned counsel for the parties have cited
various judgments in support of their rival contentions.
6. The principal contention raised on behalf of the petitioner is, that
since the petitioner had performed a marriage with the prosecutrix on
24.07.2023, he had fulfilled the promise that he is alleged to have
extended to the prosecutrix; and that therefore it cannot be said that
the promise of marriage was false.
7. Furthermore, it is submitted on behalf of the petitioner, that the
factum of the previous marriage of the petitioner was known to the
prosecutrix, even before she associated and engaged in physical
relations with the petitioner; and therefore there was no deception on
the part of the petitioner.
8. Before proceeding further, it would be beneficial to recapitulate the
enunciation of law in relation to a promise of in the
‘false marriage’
context of rape. The following judgements of the Supreme Court are
relevant in this context. In Pramod Suryabhan Pawar vs. The State
1
of Maharashtra & Anr. the Supreme Court has observed as follows :
Where the promise to marry is false and the intention of
“16.
the maker at the time of making the promise itself was not to abide
by it but to deceive the woman to convince her to engage in sexual
relations, there is a of that vitiates the
“misconception fact”
woman's . On the other hand, a breach of a promise
“consent”
1
(2019) 9 SCC 608
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cannot be said to be a false promise. To establish a false promise,
the maker of the promise should have had no intention of upholding
his word at the time of giving it. The of a woman under
“consent”
Section 375 is vitiated on the ground of a n of
“misconceptio fact”
where such misconception was the basis for her choosing to engage
in the said act. In Deepak Gulati [Deepak Gulati v. State of
Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660] this Court
observed : (SCC pp. 682-84, paras 21 & 24)
21. There is a distinction between the mere breach of a
“ …
promise, and not fulfilling a false promise. Thus, the court must
examine whether there was made, at an early stage a false promise of
marriage by the accused; and whether the consent involved was
given after wholly understanding the nature and consequences of
sexual indulgence. There may be a case where the prosecutrix agrees
to have sexual intercourse on account of her love and passion for the
accused, and not solely on account of misrepresentation made to her
by the accused, or where an accused on account of circumstances
which he could not have foreseen, or which were beyond his control,
was unable to marry her, despite having every intention to do so.
Such cases must be treated differently.
* * * * *
Hence, it is evident that there must be adequate evidence to
“24.
show that at the relevant time i.e. at the initial stage itself, the accused
had no intention whatsoever, of keeping his promise to marry the
victim. There may, of course, be circumstances, when a person having
the best of intentions is unable to marry the victim owing to various
unavoidable circumstances. The to keep a promise made with
“failure
respect to a future uncertain date, due to reasons that are not very
clear from the evidence available, does not always amount to
misconception of fact. In order to come within the meaning of the term
of the fact must have an immediate
“misconception fact”, relevance”.
Section 90 IPC cannot be called into aid in such a situation, to pardon
the act of a girl in entirety, and fasten criminal liability on the
other, unless the court is assured of the fact that from the very
beginning, the accused had never really intended to marry her
.”
(emphasis supplied)
* * * * *
To summarise the legal position that emerges from the
“18.
above cases, the of a woman with respect to Section 375
“consent”
must involve an active and reasoned deliberation towards the
proposed act. To establish whether the was vitiated by a
“consent”
of arising out of a promise to marry, two
“misconception fact”
propositions must be established. The promise of marriage must
have been a false promise, given in bad faith and with no intention
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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
.”
(emphasis supplied)
In the aforementioned case however, there was no
allegation in the FIR that the promise to marry had been extended by
the man in bad faith or with the intention to deceive the woman. The
Supreme Court therefore held that the failure to fulfil his
appellant’s
promise in 2016, which promise was made in 2008, cannot be
construed to mean that the promise itself was false.
9. The next judgment by the Supreme Court that is relevant in this
2
context is Shambhu Kharwar vs. State of Uttar Pradesh & Anr. in
which the Supreme Court Court has held as under :
In this backdrop and taking the allegations in the
“13.
complaint as they stand, it is impossible to find in the FIR or in the
charge-sheet, the essential ingredients of an offence under Section
376 IPC. The crucial issue which is to be considered is whether the
allegations indicate that the appellant had given a promise to the
second respondent to marry which at the inception was false and on
the basis of which the second respondent was induced into a sexual
relationship. Taking the allegations in the FIR and the charge-sheet
as they stand, the crucial ingredients of the offence under Section
375 IPC are absent. The relationship between the parties was purely
of a consensual nature. The relationship, as noted above, was in
existence prior to the marriage of the second respondent and
continued to subsist during the term of the marriage and after the
second respondent was granted a divorce by mutual
consent.”
(emphasis supplied)
2
2022 SCC OnLine SC 1032
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Based on the aforesaid discussion, the Supreme Court yet
again held that the ingredients of the offence under section 376 of IPC
were not established in that case.
10. On the other hand, in support of his contentions, Mr. Malhotra,
learned counsel appearing for the petitioner has relied-upon the
following judgments of the Supreme Court. First, counsel refers to
3
Ajeet Singh vs. State of Uttar Pradesh and Ors. in which the
Supreme Court has said :
11. The allegation in the FIR lodged at the instance of the
“
third respondent is that the appellant maintained a physical
relationship with the victim by giving her a false promise of
marriage. It is stated that a certificate of marriage was got prepared
by the appellant from Arya Samaj Mandir to put pressure on the
victim. It is alleged that the appellant left the victim in her house on
22-4-2015 and has never returned to take her back.
12. The notice dated 1-5-2015 issued by the advocate for
“
the victim clearly admits that the marriage between the appellant
and the victim was solemnised on 16-2-2015. A copy of the
statement of the victim recorded on 23-11-2016 by an officer of
Police Station Naka, Lucknow, is placed on record, in which she
stated that the appellant forced her to have a physical relationship
with her in a hotel in Delhi on 4-12-2014. Thereafter, the physical
relationship was maintained by the appellant. She stated that on 16-
2-2015, the appellant took her to Arya Samaj Mandir and
solemnised the marriage where no other person was present. She
stated that thereafter, they stayed in a hotel till 19-2-2015. In March
2015, she stayed with the appellant for three to four days. From the
end of April 2015, the appellant stopped attending to her phone
calls. Thus, the relationship between the appellant and the victim
was a consensual relationship which culminated in the marriage. In
3
(2024) 2 SCC 422
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the legal notice issued on behalf of the appellant, the factum of
marriage was admitted.
"13. Therefore, on the face of it, the allegation that the
physical relationship was maintained due to false promise given by
the appellant to marry, is without basis as their relationship led to
the solemnisation of marriage. Therefore, this is a case where the
allegations made in the FIR were such that on the basis of the
statements, no prudent person can ever reach a conclusion that
there is sufficient ground for proceeding against the appellant.
Therefore, clause (5) of the decision of this Court in State of
Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp
(1) SCC 335 : 1992 SCC (Cri) 426] will apply. Hence, a case was
made out for quashing the
FIR.”
[[
Second, learned counsel for the petitioner relies upon the
decision of the Supreme Court in Sheikh Arif vs. The State of
4
Maharashtra and Ors. , to point-out the following observation
in that judgement:
If this material, which is a part of the investigation
“12.
papers, is perused carefully, it is obvious that the physical
relationship between the Appellant and the second Respondent was
consensual, at least from 2013 to 2017. The fact that they were
engaged was admitted by the second Respondent. The fact that in
2011, the Appellant proposed her and in 2017, there was
engagement is accepted by the second Respondent. In fact, she
participated in the engagement ceremony without any protest.
However, she has denied that her marriage was solemnised with the
Appellant. Taking the prosecution case as correct, it is not possible
to accept that the second Respondent maintained a physical
relationship only because the Appellant had given a promise of
marriage
.”
(emphasis supplied)
4
2024 INSC 70
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11. Upon a careful consideration of the foregoing judgments cited on
behalf of the petitioner, it is seen that those were not cases of a man
who was already married. Since, in the aforesaid two cases, the
accused was not a married man, therefore the factual matrix obtaining
in those cases is clearly distinguishable from the one obtaining in the
present case.
12. The petitioner has also placed reliance on another judgment of the
Supreme Court in Dhruvaram Murlidhar Sonar vs. The State of
5
Maharashtra and Ors. which was a case of a married man, who had
informed the prosecutrix about his marital status, but he was
engaging in a sexual relationship with the woman, since he had
differences with his wife, in which context the Supreme Court held
that :
Thus, there is a clear distinction between rape and
“23.
consensual sex. The court, in such cases, must very carefully
examine whether the complainant had actually wanted to marry the
victim or had mala fide motives and had made a false promise to
this effect only to satisfy his lust, as the latter falls within the ambit
of cheating or deception. There is also a distinction between mere
breach of a promise and not fulfilling a false promise. If the accused
has not made the promise with the sole intention to seduce the
prosecutrix to indulge in sexual acts, such an act would not amount
to rape. There may be a case where the prosecutrix agrees to have
sexual intercourse on account of her love and passion for the
accused and not solely on account of the misconception created by
accused, or where an accused, on account of circumstances which
he could not have foreseen or which were beyond his control, was
unable to marry her despite having every intention to do. Such cases
must be treated differently. If the complainant (sic. accused) had
5
(2019) 18 SCC 191
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any mala fide intention and if he had clandestine motives, it is a
clear case of rape. The acknowledged consensual physical
relationship between the parties would not constitute an offence
under Section 376 IPC
.”
(emphasis supplied)
13. Upon considering the legal landscape as set-out above, and on a
conspectus of the facts and circumstances of the case, what weighs
with the court at this stage are the following considerations :
13.1. Firstly, it is undisputed that the petitioner was already married
with two children;
13.2. Secondly, despite being married, the petitioner admittedly
extended a promise of marriage to the prosecutrix, which is
seen from the narration in the FIR as well as the chargesheet,
which is also the reason why the petitioner purported to
contract a marriage with the respondent on 24.07.2023.
However, since both parties are admittedly Hindus, in view of
section 5 of the Hindu Marriage Act 1955, as interpreted by the
courts, the marriage solemnised between them was void, since
one of them (namely the petitioner) had a spouse living at the
time of their marriage;
13.3. Thirdly, as per what is recorded in the FIR and also
subsequently in the charge-sheet, the prosecutrix says that she
was not aware of the subsisting marriage; and it is
petitioner’s
therefore for the petitioner to prove to the contrary in the course
of the trial. In the circumstances, it cannot be said that the
promise of marriage extended by the petitioner to the
prosecutrix was an honest promise.
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14. Ergo, based on the material on record at this stage, and subject to
what may come through at the trial, it would appear that the promise
of marriage extended by the petitioner to the prosecutrix was false at
the inception in the words of the Supreme Court in Shambhu Kharwar
(supra), since the petitioner could not have extended a promise of
marriage to the prosecutrix when he was already married.
15. Therefore, on a prima-facie appreciation of the matter, it is evident
that the petitioner extended a false promise of marriage to the
prosecutrix.
16. It also appears believable, at least at this stage, and subject to any
contrary evidence being brought on record in the course of trial, that
the prosecutrix engaged in physical relations with the petitioner since
he had promised to marry her. Added to this is the fact, that not only
did the petitioner extend a false promise to marry, but he also
pretended to fulfil that promise by contracting a marriage with the
prosecutrix, which was another step that he took towards
misrepresentation, deceit and falsehood vis-a-vis the prosecutrix.
17. The matter is stated to be at the stage of framing of charge, which is
scheduled on 12.09.2024 before the learned Trial Court.
18. The Nominal Roll dated 29/30.04.2024 shows that as of
petitioner’s
29.04.2024, he had been in judicial custody for about 05 months.
19. In the circumstances, this court is not satisfied at this stage that if
enlarged on bail, the petitioner would not attempt to indulge in similar
conduct, which is likely to interfere and prejudice the course of trial.
20. In the above view of the matter, the present bail petition is dismissed.
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21. Pending applications, if any, also stand disposed-of.
22. Nothing in this order shall be taken as an expression on the merits of
the matter.
ANUP JAIRAM BHAMBHANI, J
AUGUST 30, 2024/ak
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