[Breach of promise to marry v. False promise to marry] Bombay HC refuses to quash FIR against rape accused, for extracting sexual relations on pretext of marriage

Bombay High Court: The accused sought the quashing and setting aside of criminal proceedings pending before the Additional Sessions Judge, Mumbai (“Trial Court”), for the offences punishable under Sections 376¹, 376(2)(n), 376(2)(h), 313², 323³, 504⁴ and 506⁵ of the Penal Code, 1860 (“IPC”). The Division Bench of A.S. Gadkari and Dr. Neela Gokhale*, JJ., perused the prosecution’s evidence and found their version reliable. The Court noted that the instant case was not a ‘breach of promise to marry’ but a ‘false promise to marry’, made to extract sexual relationship out of the victim. Therefore, the Court refused to quash the FIR against the accused and dismissed his petition.

Background

Respondent 2 (“victim”) was a divorcee residing with her minor son and became acquainted with the accused as they were residing nearby. Their friendship grew and the accused made a promise to marry her and even offered to look after her son, begotten of her previous marriage. Believing him, the victim and the accused began dating and established sexual relations. In 2018, the accused had rented a place and asked the victim to reside with him; she shifted, and the accused used to reside there for two to three days every week.

Their relationship continued and whenever the subject of marriage came up, they would have arguments. The victim eventually became pregnant and insisted the accused marry her at the earliest. The accused refused to marry her and told her to undergo an abortion. It was alleged that during her pregnancy, despite her refusal to have sexual relations, the accused raped her. The victim had given birth to the child; however, the accused refused to marry her and denied paternity of the child. It was at this point that the victim realised that she had been duped and filed the instant FIR.

Court’s analysis and judgment

The Court took note of the FIR and stated that the sexual relationship between the parties was based purely on the assurance of the accused to marry the victim, and further noted that the accused had assured her that he would also look after her son. The victim consented to the intimate relationship on basis of the promise made by the accused to marry her.

However, the Court noted that since the beginning, the accused had no intention to marry the victim. The Court viewed that the mere renting of various premises for the victim by the accused was not indicative of an intent to marry, but to keep her in a place where she would be easily at his disposal for his pleasure. The Court opined that the victim’s version was fully reliable.

The Court relied on Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608, wherein the Supreme Court had distinguished between a commission of ‘breach of a promise to marry’ and a ‘false promise to marry’, vis-a-vis sexual relations made on the basis of a promise to marry (in respect of Section 375⁶ of IPC).

The Court opined that the instant case was not such where the accused had a bona fide intent to marry the victim, and based on that assurance, the parties made intimate relations, but due to some unfortunate circumstances, the marital tie could not be fructified. Such case is a commission of breach of a promise to marry. Whereas the instant case was a false promise to marry. The Court noted that even if the consent of the instant victim to sexual relationship was presumed to be given, her consent was vitiated by the ‘misconception of fact’.

Considering the facts, circumstances and evidence of the case, the Court held that they had no justification to quash the impugned FIR, and therefore, dismissed the petition. Lastly, the Court directed the Trial Court to proceed with the case expeditiously.

[Pramod Dhanji Purabiya v. State of Maharashtra, 2024 SCC OnLine Bom 2455, decided on 02-08-2024]

*Judgment authored by: Dr. Justice Neela Gokhale

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Advocates who appeared in this case :

For the petitioner: Sana Raees Khan and Aditya Parmar, Advocates

For the respondents: Vinod Chate, APP; M.A. Khan, Tajammul Khan and Mizan Khan, Advocates

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