IMPORTANT POINT
Cheating – Long duration of physical relationship between partners without protest and insistence by female partner for marriage, would be indicative of a consensual relationship.

ORDER

This Criminal Petition is filed by the petitioner-accused seeking to quash the proceedings against him in C.C.No.3424 of 2022 on the file of the III Additional Chief Metropolitan Magistrate, Hyderabad, for the offences under Sections 417, 420 of Indian Penal Code (for short ‘IPC’).

2. Heard M/s. K. Sai Babu, learned counsel for the petitioner-accused and Sri M. Ramachandra Reddy, learned Additional Public Prosecutor for the State. There is no representation on behalf of respondent No.2. Perused the record.

3. The case of the prosecution, in brief, is that the respondent No.2 got married to a person and having 2 children. In 2015, she got separated from her husband without divorce and started living alone at Manikonda and surviving by working as a beautician. While so, the accused person got acquaintance with the respondent No.2 and exchanged phone numbers and were in live in relationship, promising that he will marry her and when asked to fulfill the promise made by him he denied to marry and stopped responding to calls made by the respondent No.2. Respondent No.2 filed a complaint against the petitioner and a case in Crime No.352 of 2022 of Banjara Hills Police Station was registered against the petitioner. After completion of investigation, charge sheet was filed, the same was taken cognizance and numbered as C.C.No.3424 of 2022 on the file of the III Additional Chief Metropolitan Magistrate, Hyderabad.

4. Learned counsel for the petitioner submitted that the petitioner was innocent and has been falsely implicated in the case. The allegations do not disclose prima facie case of the offences alleged against the petitioner. It is submitted that the respondent No.2 approached the petitioner stating that she is unmarried and not having parents and she is a beautician and running beauty parlour. Believing the same he started visiting her and then she proposed the petitioner to marry her. He never used to stay with her. Later petitioner came to know that she was already married and having grown up children and not given divorce to her husband. When the petitioner asked about the same, she informed that the whereabouts of her husband were not known to her and she has not given divorce to him. Therefore, the petitioner stopped visiting her and even not responding to her calls. Even as per charge sheet and 161 statement of the witnesses recorded by the police were taken into consideration, it will not amount to cheating as the respondent no.2 has not taken divorce from her husband, as marrying any person without obtaining divorce from her spouse will amount to further initiation of a crime. Though the petitioner is not having any intention to cheat initially, subsequently when he came to know that she was already married and having children without taking legal divorce he refused to marry her.

5. Learned counsel for the petitioner placed reliance on a decision held by the Hon’ble Supreme Court in Mahesh Damu Khare v. State of Maharashtra 2025 Cri.L.J.168, wherein, it was held as under:—

“26. ii) The physical relationship was going on routinely. But the complainant in her complaint states that after she got a rented room in Shirvane, Nerul Sector 1, Navi Mumbai, in December, 2010, the appellant used to come every day and had sexual intercourse everyday, though without her consent and by giving false promise of marriage.

27. Thus, from the above it appears that it is more of an extra-marital affair during the aforesaid period without any insistence by the complainant for getting married to the appellant. The fact that the complainant continued to have a physical relationship for a long time without any insistence on marriage would indicate the unlikelihood of any such promise made by the appellant for marrying her and it rather indicates that the relationship was a consensual one.

In our opinion, the longer the duration of the physical relationship between the partners without protest and insistence by the female partner for mar