Sunday 11 January 2015

Whether breach of promise to marry can be said to be either a cheating or rape?

While deciding the instant case, the bench comprising of Mrs. Mridula Bhatkar, J. held that every breach of promise to marry cannot be said to be either a cheating or rape. The Court further held that to keep physical relationship or not is a choice of both the parties. The Court after listening the arguments from both sides, stated that even if there is bonafide promise to marry and the girl chooses to keep sexual relationship with that person and if a boy withdraws his promise, as they are not psychologically compatible with each other, then it cannot bring that particular act within the purport of offence under section 375 of IPC i.e., rape.
The Court decided that anticipatory bail can be granted in such cases after considering all the requisite factors. Where a couple is in love with each other, they may have sexual relationship. Realizing that they are not compatible and sometimes love between the parties is lost and their relationship dries gradually, then earlier physical relationship cannot said to be rape. The Court further observed that marriage is not only based on physical compatibility but also on emotional and psychological bonding. In the present case, the four years sexual relationship on the promise to marry cannot be considered as rape if such promise is breached because a  major and educated girl is expected to know the demand of her body and to understand the consequences of getting into sexual relationship.


in the matter between
Mahesh Balkrishna Dandane
The State of Maharashtra 
Ori. Complainant

Ms. Sonali Alfred Jadhav


 DATE     :  12th March, 2014.

Heard.  The Application for intervention is allowed.
 Application No. 27 of 2014 is moved for anticipatory bail under 
section 438 of Cr. P    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, 
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 2008­09 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 
pre­wedding 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.
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 1 st 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   21 st  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.

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   induced   and   promised   by   the 
applicant/accused   to   marry   her.   Thus   her   consent   was   obtained 
fraudulently by the applicant/accused and has misrepresented her that 
he would marry her.  The learned counsel for the complainant further 
relied   on   many   photographs   showing   physical   intimacy   of   the 
applicant/accused   and   complainant.   He   relies   on   SMS   sent   by   the 
applicant to the complainant on 8 th  December, 2013 at 12.27 at night 
after marriage that he wanted to keep contact with her.   He further 
submitted that the promise of marriage was given from 2011 by the 
applicant when the complainant asked the applicant to marry and the 
same is mentioned in the FIR.
The case is based on promise to marry and fall out of broke­up 
relationship.   Nowadays keeping sexual relationship while having an 
affair or before marriage is not shocking as it was earlier.  A couple may 

decide   to   experience   sex.     Today   especially   in   metros   like   Mumbai, 
Pune etc., the Society is becoming more and more permissive.  Though 
unlike   western   countries,     we   have   social   taboo   and   are   hesitant   to 
accept   free   sexual   relationship   between   unmarried   couples   or 
youngsters as their basic biological need; the Court cannot be oblivious 
to a fact of   changing behavioural norms and patterns between man 
and woman relationship in the 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  the  consequences of getting 
into   sexual   relationship.     Today   the   law   acknowledges   live   in 
relationship. The 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.   Thus, having sexual relationship with a man whether is 
her conscious decision or not is to be tested independently depending 
on the facts and circumstances of each and every case and no straight 
jacket formula or any kind of labelling can be adopted.
For   example,   an   uneducated   girl   from   a   very   poor   strata   of   a 
Society is induced to keep physical relationship on promise to marry by 
a   person   from   a   higher   class,   then   there   may   be   a   possibility   of 
prosecution under section 376 of IPC.  Similarly, if a man suppresses his 
first marriage and keeps physical relationship with a girl promising to 
marry her or subsequently marries then also it can be said that consent 

is adopted fraudulently, therefore, he can be prosecuted under section 
376 of IPC. 
However, 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 the parties is lost and their relationship dries 
gradually,   then   earlier   physical   contacts   cannot   be   said   as   rape.   A 
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.   Thus while granting anticipatory bail,   all these factors 
are required to be considered.
In the present case, both the applicant/accused and complainant 
are graduated in law.   A fact of their sexual relationship is admitted. 
Their relations were going on for a long period i.e. from 2009 till 2013. 
However,  there  was  a   letter  written   by  the   applicant/accused  in  the 
year 2011 wherein he has mentioned that the complainant is forcing 
him   to   marry   as   she   tried   to   commit   suicide.   Thereafter   also   their 
physical relationship continued.  The photocopy of SMS sent on 1 st July, 
2013  prima   facie  discloses   that   complainant   had   an   idea   that 

applicant/accused has decided to marry other girl.   Moreover, to keep 
physical relationship or not is a choice of both the parties.  Prima facie  
it  does  not  appear  from   the  record   that  the   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   the   applicant/accused.     Even   though   if   at   all   there   is   bonafide 
promise   to   marry   and   the   girl   chooses   to   keep   physical   relationship 
with that persons and if a boy withdraws his promise, as they are not 
psychologically comfortable with each other, then it cannot bring that 
particular act within the purport of offence under section 375 of IPC. 
The   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 non­committal, consensual relationship cannot be 
In this case it is submitted by the counsel for the complainant 
that the complainant is pregnant of 14 to 16 weeks.  However, it is her 
choice to be a mother or not.  If child is born, then for his rights, the 
complainant may adopt other legal recourse before appropriate forum. 
The submissions of learned counsel for the complainant that custodial 
interrogation of applicant/accused is required for DNA test cannot be 
appreciated, as the applicant/accused can be directed to go for DNA 
test.  In view of this, Application is allowed with following directions:

(i) The applicant be enlarged on bail on furnishing P
.R. Bond in the 
sum of Rs. 25,000/­ with one or two sureties in the like amount.
(ii)The   applicant   shall   cooperate   the   police   and   also   give   blood 
sample for DNA test.
(iii)The applicant shall not contact the complainant and shall not 

The Application is disposed of on above terms.

pressurize her.

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