2015 ALL MR (Cri) 2805
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

MRS. MRIDULA BHATKAR, J.

Mahesh Balkrishna Dandane Vs. The State of Maharashtra

Criminal Anticipatory Bail Application No.27 of 2014,Criminal Intervention Application No.179 of 2014

12th March, 2014.

Petitioner Counsel: Mr. GANESH K. GOLE
Respondent Counsel: Mr. V.B. KONDE-DESHMUKH
Other Counsel: Mr. MAYUR SALUNKHE

(A) Criminal P.C. (1973), S.438 - Penal Code (1860), Ss.376, 406, 420 - Anticipatory bail - Grant of - Offence of cheating and rape - Alleged breach of promise to marry - Held, every breach of promise to marry cannot be said to be either a cheating or rape - Factors required to be considered while granting anticipatory bail in such cases, stated.

(B) Penal Code (1860), Ss.376, 406, 420 - Rape and cheating - Alleged breach of promise to marry - Held, every breach of promise to marry cannot be said to be either a cheating or rape - Whether relationship between parties were consensual or not, is to be tested independently, depending on the facts and circumstances of each case - No straight jacket formula or any kind of labeling can be adopted.(Para 6)

JUDGMENT

JUDGMENT :- 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. I-321 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. I-321/ 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 non-committal 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 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 8th 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.

6. 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.

7. 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.

8. 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.

9. 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 1st 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 non-committal, consensual relationship cannot be denied.

10. 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:

ORDER

(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 pressurize her.

11. The Application is disposed of on above terms.

Application allowed.