A married woman cannot be understood to have been allured by

promise of marriage by accused

CASE BRIEFSHIGH COURTS
Published on December 25, 2017

High Court of Himachal Pradesh: A Single Judge Bench comprising of Dharam Chand
Chaudhary, J. allowed a criminal petition quashing the FIR filed against the petitioner, holding
that the evidence available on record was not sufficient to convict him under Section 376 of IPC.
The petitioner was accused of forcibly having sexual intercourse with the complainant on the
pretext of marrying her. The complainant was at the time of alleged incident, already married
and a mother of three children. Learned counsel for the petitioner contended that the complainant
was a legally wedded wife of one Sri Nitu and she could not have been allured to solemnize
marriage by the petitioner, nor be subjected to sexual intercourse at that pretext.
The High Court perused the record and found that the complainant was already married at the
time of alleged incident. The Court referred to the Supreme Court decision in (2013) 9 SCC 293
to discuss the law on the subject. The Court was of the view that in the case of an unmarried
woman one can understand that she fell prey to the allurement so given to her by the accused.
However, there is no question of a married woman to fall prey to any such allurement given to
her knowing fully well that she was married and could have not solemnized the second marriage
till subsistence of her first marriage. The Court was satisfied that on the basis of evidence
available at the instant stage, even if taken as it is, no findings of conviction under Section 376 of
the Indian Penal Code could be recorded against the accused-petitioner. Allowing the criminal
proceedings to continue would rather amount to abuse of the process of law, besides wastage of
the precious court time which could be utilized to decide the genuine cases pending in large
numbers in the Court.
Accordingly, the petition was allowed and the FIR registered against the petitioner was quashed.
[Dushyant Kumar v. State of Himachal Pradesh, 2016 SCC OnLine HP 4166, order dated
20.12.2016]