A false promise of marriage, made in bad faith and with no intention of being adhered to at the time it was given, could vitiate the consent of the woman.

JUDGMENT

Vikas Mahajan, J.

CRL.M.A. 16718/2023(exemption)

1. Allowed, subject to all just exceptions.

2. Application stands disposed of.

BAIL APPLN. 2125/2023 & CRL.M.A. 16719/2023(interim protection)

3. This is an application filed under Section 438 CrPC seeking anticipatory bail in FIR No.290/2023 registered under Sections 376 IPC and Section 4 of Dowry Prohibition Act, 1961 registered at Police Station Mehrauli.

4. The allegations as borne out from the FIR are that pursuant to the proposal of marriage made by the petitioner's family, the prosecutrix met the mother of the petitioner on 28.01.2023. After matching of the horoscopes, the date of engagement was fixed on 15.04.2023. The function of engagement was attended by about 200 relatives from both sides.

5. On 19.04.2023, the petitioner and his relatives took prosecutrix to Mehndipur Balaji for overnight stay where on the assurance of marriage, the petitioner established sexual relations with the prosecutrix. Thereafter, on 22.04.2023, the mother of the prosecutrix spoke to the grandmother of the petitioner and the marriage of the petitioner with the prosecutrix was fixed on 09.12.2023.

6. In the meanwhile, on 05.05.2023, the petitioner came to attend the birthday party of younger brother of the prosecutrix at about 06:00 p.m. He was already drunk and he forcibly established physical relations with the prosecutrix after taking the prosecutrix to her room. Since the petitioner was heavily drunk, the prosecutrix, her brother and sister-in-law (brother's fiancie) went to drop him. While the brother of the prosecutrix was driving and his fiancie was sitting by his side, the petitioner again had sexual relations with the prosecutrix asking her brother to look ahead. Later, on 20.05.2023 the petitioner by sending a message called off the engagement.

7. Subsequently, the prosecutrix made a complaint on 22.05.2023 before the CAW Cell, Saket. Thereafter, the petitioner through his counsel issued a legal notice to the prosecutrix on 25.05.2023 stating the reasons to call off the engagement and proposing to return/exchange the gifts presented by two families to each other.

8. Sequel to above, a complaint dated 06.06.2023 was made by the prosecutrix on the basis of which FIR in question was registered on 07.06.2023.

9. The learned counsel for the petitioner submits that the incident of 05.05.2023 alleged in the FIR that the petitioner made physical relations with the prosecutrix on the backseat of the car while her brother was driving the said car, is not even mentioned in the complaint made by the prosecutrix to CAW Cell on 22.05.2023, besides the same being implausible.

10. He submits that the complaint was made by the prosecutrix on 22.05.2023 only after the message was sent by the petitioner on 20.05.2023 expressing that it will not be possible to continue the relationship as the petitioner strongly thinks that the prosecutrix won't be able to adjust in his family.

11. He submits that in response to the message sent by the petitioner on 20.05.2023, the prosecutrix never stated that the petitioner has spoiled her life. Rather, the uncle of the prosecutrix sent a threatening message - "wait and watch...? ?"

12. He further submits that the last incident of making physical relations by the petitioner with the prosecutrix is of 05.05.2023 which is highly improbable and the other incident alleged is of 19.04.2023. The prosecutrix was medically examined only on 07.06.2023. Therefore, even presuming the allegations to be correct, the alleged mark opined by Doctor in the MLC to be a bite mark on the chest and breast of the prosecutrix could not be taken as a bite mark since the bite mark could not have remained intact and visible almost two months after the alleged incident.

13. He further submits that the family of the petitioner as well as that of the prosecutrix, were involved in finalizing the alliance and fixing their engagement. The function of engagement was performed a