Case Note & Summary
The petitioners, including Bharat Devdan Salvi (Petitioner No.1) and his family members (Petitioners No.2 to 7), filed a Criminal Writ Petition under Article 226 of the Constitution read with Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of FIR No.46 of 2015 registered at Bhosari Police Station, Pune, for offences under Sections 376 (rape) and 417 (cheating) read with Section 34 of the Indian Penal Code, 1860. The FIR was lodged by Respondent No.2, Luisa Petaras Jadhav, who was engaged to marry Petitioner No.1. She alleged that on 9 December 2014, Petitioner No.1 had sexual intercourse with her against her will and without her consent, and that subsequently, Petitioner No.1 and his family members called off the marriage, thereby cheating her. The petitioners contended that the FIR did not disclose the ingredients of rape or cheating, as the sexual relationship was consensual and the marriage was called off due to lack of compatibility. The court examined the allegations in the FIR and found that the prosecutrix had voluntarily participated in the sexual act on a promise to marry, but the promise was not false from the inception; it was broken due to circumstances beyond the control of the accused. The court held that such a breach does not constitute rape under Section 375 IPC, as the consent was not vitiated by a fraudulent promise. Regarding the charge of cheating under Section 417 IPC, the court noted that there was no allegation of fraudulent intention at the time of the promise, and the mere failure to marry does not amount to cheating. As for the family members (Petitioners No.2 to 7), the court observed that there were no specific allegations against them, and they could not be vicariously liable for the offence of rape. Consequently, the court allowed the petition, quashed the FIR, and discharged the petitioners from all offences.
Headnote
A) Criminal Law - Rape - Breach of Promise to Marry - Section 375, 376 IPC - Consent - Where the prosecutrix voluntarily engaged in sexual intercourse on a promise to marry, but the marriage was called off due to incompatibility, the offence of rape is not made out as the consent was not vitiated by a false promise from the inception. The court held that the FIR did not disclose the ingredients of rape under Section 375 IPC. (Paras 3-5) B) Criminal Law - Cheating - Section 415, 417 IPC - Breach of Promise to Marry - The mere fact that the marriage did not take place does not amount to cheating unless there was a fraudulent intention at the time of promise. In the absence of such intention, the offence under Section 417 IPC is not attracted. (Para 5) C) Criminal Law - Vicarious Liability - Family Members - Section 376, 34 IPC - The petitioners No.2 to 7, being family members of the accused, cannot be prosecuted for rape under Section 376 IPC in the absence of specific allegations of their involvement. The court quashed the FIR against them. (Para 6)
Issue of Consideration
Whether sexual intercourse on a promise to marry constitutes rape under Section 375 IPC when the promise is subsequently broken, and whether family members can be prosecuted for such offence.
Final Decision
The petition is allowed. The FIR No.46 of 2015 registered with Bhosari Police Station, Pune, for offences under Sections 376 and 417 read with 34 IPC is quashed. The petitioners are discharged from all offences.
Law Points
- Breach of promise to marry does not constitute rape if consent was given voluntarily
- Family members cannot be prosecuted for rape under Section 376 IPC without specific allegations
- Quashing under Section 482 CrPC is warranted if FIR does not disclose prima facie offence
