Consent given with knowledge of the other party's marital status does not constitute cheating under IPC; the relationship was consensual despite misrepresentations.

JUDGMENT :

PARTHIVJYOTI SAIKIA, J.

1. Heard Mr. P. Bhowmick, learned counsel appearing for the petitioner. Also heard Mr. K. Baishya, the learned Public Prosecutor, State of Assam representing Respondent No.1 as well as Mr. M.K. Das, the learned counsel representing Respondent No.2.

2. This is an application under Section 528 of the BNSS, 2023 praying for quashing the FIR and the charge sheet in respect of All Women P.S. Case No.32/2024 and the Charge Sheet No.27/2024 dated 29.06.2024.

3. The Respondent No.2 has stated that she met the present petitioner in Instagram. He introduced himself to be 35 years old, unmarried and was looking for a bride. Over a period of time, the petitioner managed to gain the trust of the Respondent No.2. The petitioner allegedly treated the Respondent No.2 as his wife. He even took her to his house where he lived alone.

4. The Respondent No.2 came to know that the person whom the petitioner introduced to her as his tenant was actually his elder brother. But the Respondent No.2 decided to neglect the said act of the petitioner, considering the fact that the petitioner treated her as his wife.

5. The petitioner and the Respondent No.2 had regular physical relationship. At that time, the Respondent No.2 came to know that the petitioner was actually 46 years old and was already married to Gayotri Saha. When the Respondent No.2 confronted the petitioner on this issue, he told her that a divorce petition being F.C. (Civil) Case No.274/2021, relating to Gayotri Saha was going on.

6. The Respondent No.2 was shattered when she came to know that the petitioner had a 12 year old son.

7. Slowly, the petitioner started to maintain distance from the Respondent No.2. In the meantime, she came to know that the petitioner was having affairs with a lot of married women and college going girls. She disclosed the names of three women.

8. For the aforesaid reasons, the petitioner and the Respondent No.2 had a quarrel. The petitioner allegedly beat her and also threatened that he would upload her compromising videos in the social media. The Respondent No.2 claimed that the petitioner had cheated her.

9. Mr. Bhowmick submits that it was the Respondent No.2 who had registered herself in a dating site named “Tinder”. Thereafter, in Instagram she came to know the petitioner.

10. According to Mr. Bhowmick, the couple was about to married in the month of April, 2024. They spent several nights together. He even videographed their intimate moments.

11. The learned counsel has submitted that the Respondent No.2 had uploaded her photographs with the petitioner in the social media. The petitioner was upset because the said act on the part of the Respondent No.2 might impact his divorce proceedings.

12. Mr. Bhowmick concluded his argument by stating that the Respondent No.2 was more than 30 years old and in spite of attaining maturity, she continued relationship with a man for a long time without marriage. According to the learned counsel, under the given circumstances, there are no elements of cheating on the part of the present petitioner.

13. The learned counsel Mr. Das has submitted that the petitioner had the habit of living an adulterous life. According to Mr. Das, in order to gain the trust of the Respondent No.2, the petitioner never disclosed before her that he was already married and had a 12 year old son. By gaining trust of the Respondent No.2, the petitioner had physical relationship with her and this amounts to the offence of cheating.

14. I have considered the submissions made by the learned counsel of both sides.

15. The Section 90 of the IPC has defined the word consent as under -Section 90. Consent known to be given under fear or misconception

A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or