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BOMBAY HIGH COURT
Mrs. Mridula Bhatkar, J.
Mahesh Balkrishna Dandane —Applicant
versus
State of Maharashtra —Respondent
Ms. Sonali Alfred Jadhav — Intervener
in the matter between
Criminal Anticipatory Bail Application No. 27 of 2014 with Criminal Intervention Application No. 179 of 2014
Decided on 12.3.2014
Counsel for the Parties:
For the Applicant:Mr. Ganesh K. Gole, Advocate.
For the State: Mr. V.B. KondeDeshmukh, APP
For the applicant/intervener in Cri. Application No. 179/2014:Mr. Mayur Salunkhe, Advocate.
IMPORTANT POINTS
(1) Every breach of promise to marry cannot be said to be either a cheating or rape.
(2) marriage cannot be imposed, as a search of life partner depends not only on physical compatibility but also on emotional, psychological bonding.
Headnote:(i) Indian Penal Code, 1860—Sections 420, 406, 376, 323 and 506(2)—Criminal Procedure Code, 1973—Section 438—Anticipatory bail—Sexual relationship on false pretext of marriage—Nowadays keeping sexual relationship while having affair or before marriage is not shocking as it was earlier—A couple may decide to experience sex—Court cannot be oblivious to fact of changing behavioural norms and patterns between man and woman relationship in society so also a fact of ground realities and of late marriages—A major and educated girl is expected to know demand of her body and to understand consequences of getting into sexual relationship—Today law acknowledges live in relationship—Law also acknowledges a woman’s right to have sex, woman’s right to be a mother or woman’s right to say no to motherhood—Having sexual relationship with a man whether is her conscious decision or not is to be tested independently depending on facts and circumstances of each and every case and no strait jacket formula or any kind of labeling can be adopted. (Para 6)
(ii) Indian Penal Code, 1860—Sections 420, 406, 376, 323 and 506(2)—Criminal Procedure Code, 1973—Section 438—Cheating and rape—Hurt and criminal intimidation—Anticipatory bail—Sexual relationship on false pretext of marriage— Every breach of promise to marry cannot be said to be either a cheating or rape—A couple in love with each other may be having sexual relationship and realize that they are not compatible and sometimes love between parties is lost and their relationship dries gradually, then earlier physical contacts cannot be said as rape—Marriage cannot be imposed, as a search of life partner depends not only on physical compatibility but also on emotional, psychological bonding—It is a matter of choice related to individual’s notions of suitability, emotional, psychological comfort and biological requirement—While granting anticipatory bail all these factors are required to be considered. (Para 8)
(iii) Indian Penal Code, 1860—Sections 420, 406, 376, 323 and 506(2)—Criminal Procedure Code, 1973—Section 438—Cheating and rape—Hurt and criminal intimidation—Anticipatory bail—Sexual relationship on false pretext of marriage— Both applicant/accused and complainant are graduated in law—Their relations were going on for a long period—To keep physical relationship or not is a choice of both parties—Prima facie it does not appear from record that complainant was either forced to keep sexual relationship or she was really induced to such an extent that she has no other option but to keep physical relationship with applicant/accused—Even though if at all there is bonafide promise to marry and the girl chooses to keep physical relationship with that person and if a boy withdraws his promise, as they are not psychologically comfortable with each other, then it cannot bring that particular act within purport of offence under section 375 of IPC—Complainant is an educated girl and it shows that it was her conscious decision to keep sexual relations with him—Prima facie at this stage, possibility of non-committal, consensual relationship cannot be denied—Anticipatory bail granted. (Paras 9 and 10)
Result: Anticipatory Bail Application allowed.
JUDGMENT
Mrs. Mridula Bhatkar, J.—Heard. The Application for intervention is allowed.
2. Application No. 27 of 2014 is moved for anticipatory bail under section 438 of Cr. P.C. The complainant is a lady who has lodged a complaint under section 420, 406, 376, 323, 506(2) of IPC. The crime is registered at C.R. No. I321 of 2013 with Upanagar Police Station, Nashik.
3. It is the case of the prosecution that the complainant and applicant/accused both were having an affair and there was a promise by the applicant/accused to marry the complainant. The complainant, therefore, readily kept sexual relationship with the applicant. It is the case of the complainant that since 1999 the complainant knew applicant/accused and in November, 2006 they had sexual interaction. At the relevant time the applicant/accused has told her that he wanted to marry her and therefore, the complainant did not object to have sexual relations with him at different places. In the year 2008-09 the applicant avoided to talk about their marriage and therefore, she consumed tranquilizer and was admitted in the hospital. Thereafter, they continued to meet and maintained their physical relationship. On 6th December, 2013 the complainant came across a photograph of the applicant/accused. The said photograph was taken while performing pre-wedding rituals and therefore, she arrived at Nashik in the evening on the same day and found that the applicant/accused has performed marriage with some other girl. The complainant, therefore, lodged complaint on 10th December, 2013 at Khondva Police Station. Pursuant to that, police registered FIR at C.R. No. I321/ 2013 at Upnagar Police Station, Dist. Nashik. Hence, the applicant filed this application for anticipatory bail.
4. The learned counsel for the applicant/accused submitted that the applicant/accused has neither cheated nor raped the complainant. He submitted that he never promised complainant to marry her as they belonged to different religion. He further submitted that though there was contacts between the parties, the complainant on 1st July, 2013 had knowledge that the applicant was engaged with other girl. The learned counsel further submitted that the complainant attended the wedding of the applicant/accused. The charges made by the complainant are false. The learned counsel submitted that on 21st May, 2011 the applicant has lodged complaint against the complainant with Sr. Police Inspector, Nashik Road Police Station where he has expressed apprehension that the complainant would likely to commit suicide and falsely implicate him in the offence. The learned counsel further submitted that in the said letter, the applicant/accused has mentioned that the complainant has forced him on previous date that he should marry her and threatened him that she would end her life. He further submitted that the applicant/accused is innocent and he never had intention to commit any offence as alleged. The learned counsel further submitted that the complainant and applicant/accused both have secured degree in law. The applicant is practicing advocate and the complainant was working as a legal officer. The learned counsel further submitted that whatever acts are done are by consent and with understanding between two persons for which the applicant/accused is not to be blamed alone. He further submitted that physical relationship between the parties was noncommittal consensual relationship.
5. Learned APP and counsel for the complainant opposed the application for anticipatory bail on the ground that the applicant/accused has cheated the complainant by giving false promise to marry her. The applicant/accused has induced her to keep sexual relations with him and deceived her. It is further submitted by the learned counsel for the complainant that the complainant was not aware about the marriage of the applicant/accused with other girl. The learned counsel further submitted that the complainant conceded sexual relationship, as she was in
