Satender v. State Govt. of NCT of Delhi & Anr.

Panchayat, the applicant entered into a matrimonial alliance with the complainant by solemnizing the marriage in a temple and further adopted son of the complainant from her previous husband. (e) It is alleged that adoption of the child is also apparent from the aadhar card and other documents wherein the name of the applicant is mentioned as his father. It is also alleged that the applicant was working in Postal department had got her name entered in his official records as his wife. (f) It is also alleged that on 25.12.2016, the documents of divorce were executed and since then the complainant was living at her parent’s house where she was visited by the applicant, who took her out for various sightseeing etc. (g) It is further alleged that since the applicant used to come to complainant’s house often and on one day while the complainant was alone at home, he made physical relationship with her without her consent. It is alleged that when she told the applicant that she will lodge a complaint against him, he assured that he will marry her and thereafter in October, 2017 he got married with the complainant. It is stated thereafter both the applicant and complainant started living at property bearing no. 4th floor, Madangir, New Delhi till June, 2018. (h) Thereafter, it is stated that the parties shifted to House No.739, Top Floor, Gali No.25, DDA Flats, Madangir, New Delhi and lived there till February, 2019. It is stated that after that the applicant again shifted to C-684, 1st Floor, Madangir, New Delhi and started living here w.e.f.15.02.2019. It is alleged that during the stay with the applicant, the complainant got pregnant and the applicant got the child aborted in the month of February, 2021 against the wishes of the complainant. It is alleged that subsequently also, the applicant got the complainant’s pregnancy aborted forcibly under threat and the last child was aborted on 01.10.2021.

(i) It is alleged that during this period, the applicant had to show the decree of divorce in his office. Therefore, in connivance with the complainant’s previous husband they got a decree of divorce from competent court. It is alleged that the applicant got settled the amount with her first husband and a sum of Rs. 11,00,000/- was decided towards all claims of the complainant. It is stated that out of Rs. 11,00,000/-, Rs. 5,50,000/- was paid to the complainant by demand draft at the first motion and remaining amount of Rs.5,50,000/- was to be paid at the time of second motion. (j) It is alleged that the applicant then left the company of the complainant on 02.02.2022 and that she has now come to know that the applicant was contemplating to enter into second matrimonial alliance with some other lady notwithstanding their present matrimonial alliance. It is alleged that when the complainant requested the applicant to desist from entering into second matrimonial alliance, the applicant threatened her to do away with her life as he had done with the life of the unborn babies.

14. It is pertinent to note that the FIR was initially registered under Sections 498A and 406 of the IPC.

15. As per the status report dated 26.01.2024 authored by Insp. Kishan Kumar, SHO, PS. Ambedkar Nagar, it is stated that during the course of investigation Section 313 of the IPC was added on 17.07.2023 and subsequently on the statement of the complainant under Section 164 of the Cr.P.C. recorded on 26.07.2023, Section 376 of the IPC was also added.

16. The applicant has placed on record divorce petition under Section 13 (1) (i) (ia) of the Hindu Marriage Act, 1955 in HMA 261/2017 filed by the previous husband of the complainant before Learned District Judge, Palwal, Haryana which was subsequently withdrawn by him on 16.07.2018. In the said petition apart from complainant who was arrayed as respondent no.1, one ‘D.K.’ was also arrayed as respondent no.2. The divorce was sought by the previous husband on the ground of adultery. It is alleged in the said petition that the complainant had left her matrimonial house on 21.12.2016 alongwith valuable and other ornaments without informing her previous husband and started residing with the parents. It is also matter or record that decree by mutual consent was obtained by the complainant from her previous husband on 01.11.2022. The sum of Rs. 11,00,000/- handed over to the complainant by demand draft is also an admitted fact.

17. The prosecution has placed on record various documents as pointed out hereinbefore to show that the applicant had been showing the complainant as his wife and her child from previous marriage to be his child. Various statements have been placed on record to show that the complainant and applicant were living as husband and wife. In fact, it is the case of the complainant herself that the marriage was solemnized with the applicant in the temple in October 2017. As per the FIR, the grievance of the complainant was that despite the matrimonial alliance between them, the applicant was getting married to some other lady.

18. Learned counsel for the applicant had vehemently argued that since the marriage of the complainant with her previous husband had been annulled by decree of divorce on 01.11.2022 therefore, there could not have been a valid marriage between the present applicant and complainant. To counter the same, it has been argued on behalf of the prosecution as well as the complainant that prior to obtaining formal divorce, divorce with the previous husband had been obtained at Panchayat which was on 25.12.2016. Although it is alleged that document to this effect was executed between the parties, however, the said document has not seen light of the day. As per the FIR, there were 2 copies made of the document, one was obtained by the present applicant and the other was by previous husband of the complainant. Statement of her previous husband has been recorded by the Investigating Officer, who stated that there was settlement, however, copy of the settlement was with the complainant and one which he has, he will look for it in his house and if he could find he would submit it to the Investigating Officer. Statement of one Rajender Kumar, Counsellor, Ward No. 13 was also recorded who states that there was some settlement between the complainant and her husband and copy of the same has been given to both the parties.

19. It is also alleged that between period of February 2021 to 01.10.2021 the applicant made the complainant to abort thrice. The prosecution has also placed reliance on certain chats between the complainant and applicant to corroborate the allegation of abortion as well as certain hospital records to establish the allegation of abortion. The transcripts have been placed on record to show that the applicant had thrown the fetus in some drain.

20. The thrust of the allegation is that the applicant had made sexual relations with the complainant on false promise to marry. Hon’ble Supreme Court in Jaspal Singh Kaural vs. State of NCT of Delhi & Anr.3. The facts in the said case was that the FIR had been registered against the applicant therein on the allegation that he had established physical relationship with the complainant with the promise to marry her and take care of the 2 children. The allegation was to the effect that the appellant therein was known to the complainant since 2011 prior to their respective marriages, however, their love rekindled in 2016 amongst the matrimonial life.

21. The facts in the said judgment are stated as follows:-

22. In the said case, the chargesheet against the appellant therein was filed under Sections 376/506 of the IPC, however he was discharged by the learned Trial Court. The said order of discharge was set aside by the High Court in a revision petition filed against the same. The Hon’ble Supreme Court while examining the relevant law observed and held as under:-

breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376. As stated earlier, each case would depend upon its proved facts before the court.

22. In the instant case, the prosecutrix who herself was a married woman having three children, could not be said to have acted under the alleged false promise given by the appellant or under the misconception of fact while giving the consent to have sexual relationship with the appellant. Undisputedly, she continued to have such relationship with him at least for about five years till she gave complaint in the year 2015. Even if the allegations made by her in her deposition before the court, are taken on their face value, then also to construe such allegations as “rape” by the appellant, would be stretching the case too far. The prosecutrix being a married woman and the mother of three children was mature and intelligent enough to understand the significance and the consequences of the moral or immoral quality of act she was consenting to. Even otherwise, if her entire conduct during the course of such relationship with the accused, is closely seen, it appears that she had betrayed her husband and three children by having relationship with the accused, for whom she had developed liking for him. She had gone to stay with him during the subsistence of her marriage with her husband, to live a better life with the accused. Till the time she was impregnated by the accused in the year 2011, and she gave birth to a male child through the loin of the accused, she did not have any complaint against the accused of he having given false promise to marry her or having cheated her. She also visited the native place of the accused in the year 2012 and came to know that he was a married man having children also, still she continued to live with the accused at another premises without any grievance. She even obtained divorce from her husband by mutual consent in 2014, leaving her three children with her husband. It was only in the year 2015 when some disputes must have taken place between them, that she filed the present complaint. The accused in his further statement recorded under Section 313CrPC had stated that she had filed the complaint as he refused to fulfil her demand to pay her huge amount. Thus, having regard to the facts and circumstances of the case, it could not be said by any stretch of imagination that the prosecutrix had given her consent for the sexual relationship with the appellant under the misconception of fact, so as to hold the appellant guilty of having committed rape within the meaning of Section 375IPC.”

14. The decision in Naim Ahamed [Naim Ahamed v. State (NCT of Delhi), (2023) 15 SCC 385] is squarely applicable to the conspectus of present case. It has been time and again settled by this Hon'ble Court, that the mere fact that physical relations were established pursuant to a promise to marry will not amount to a rape in every case. An offence under Section 375IPC could only be made out, if promise of marriage was made by the accused solely with a view to obtain consent for sexual relations without having any intent of fulfilling said promise from the very beginning, and that such false promise of marriage had a direct bearing on the prosecutrix giving her consent for sexual relations.

15. Upon a bare perusal of the FIR and the charge-sheet, the following facts are clearly established:

15.1. The physical relationship between the appellant and Respondent 2 was consensual from the very beginning and cannot be said to be against the will or without the consent of the prosecutrix. Even if the case of the prosecutrix is accepted, there is no material on record to show that there was any dishonest inducement, or incitement on part of the appellant.

15.2. There is also no material on record, to establish an offence of criminal intimidation under Section 506IPC against the appellant. In fact, it is apparent from the conduct of the appellant, that he was acting in furtherance of the promise to marry. It is the own observation of the High Court, that the appellant had made a promise to marry Respondent 2 and was acting accordingly. The mangalsutra being prepared with the initials of the name of Respondent 2 complainant does reflect his intention and promise to marry. However, in the eventuality of a fall out or split between the parties, it cannot be said that the promise to marry was false, and the corresponding conduct dishonest. 15.[3] There is also no element of criminality that can be accrued to the appellant, insofar as it is the own case of the prosecutrix, that she was in a relationship with the appellant, while being in a subsisting marriage. It is also hard to believe that the prosecutrix could have sustained a physical relationship for a prolonged period of five years, while being in a subsisting marriage, and even subsequently obtaining divorce to sustain the relationship. The prolonged period of the relationship, during which the sexual relations continued between the parties, is sufficient to conclude that there was never an element of force or deceit in the relationship. The prosecutrix was thus, conscious and cognizant of the consequences of her actions, and had given her consent after an active and reasoned deliberation.”

23. In the present case, as per the complainant herself, she was living with the applicant as husband and wife since October 2017. The complainant who was already married and having a child from the previous marriage continued to stay with the applicant without any formal decree of divorce. The complainant's case is that the said relationship commenced after the panchayat divorce on applicant's promise that he would marry her and adopt her child. Whether the same in the aforesaid circumstances would amount to false promise to marriage or that she gave her consent for sexual relations under misconception of fact is a matter of trial to be determined by the learned Trial Court at an appropriate stage. But this live in relationship between the complainant and the applicant which admittedly commenced in October 2017 till the filing of the present complaint cannot be ignored for the purpose of the present application. The complainant in the present FIR also makes one allegation with respect to the applicant making physical relationship with her against her will. Although there is no date given by the complainant with regard to the said incident however it is her case that she did not make any complaint against him on his assurance that he will marry her. It is pertinent to note that this incident as per the complainant, took place after a divorce was obtained with her previous husband in a Panchayat and that too was in furtherance of applicant’s alleged assurance that he will marry her and adopt her son. Moreover, the fact remains that the complainant continued to live with the applicant thereafter till the filing of the present complaint.

24. Similarly, it is pertinent to note that the first allegation of forcible abortion as per the complaint was on 15.02.2021. However, she continued to stay with the applicant and even obtained a decree of divorce from her previous husband after receiving an amount of Rs. 11 lakhs which was admittedly credited to her account. Thus, the allegation of forcible abortion is also disputed question of fact which shall be determined during the course of the trial. One of the grounds to oppose the present application for anticipatory bail is that the mobile phone from which the applicant had forwarded the photographs of the fetus has to be recovered. The aforesaid circumstance is sought to be brought on record to prove that there was an abortion, however whether the same was forcible or not is disputed.

25. The Hon’ble Supreme Court in “Siddharam Satlingappa Mhetre V. State of Maharashtra and Others[4] ” while analyzing the law relating to anticipatory bail observed and held as under:

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused's likelihood to repeat similar or other offences;

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”

26. The applicant during the pendency of the present application was given interim protection and he has joined the investigation as and when directed by the Investigating Officer. The applicant is stated to be a public servant and therefore has roots in society and is not a flight risk.

27. In totality of the facts and circumstances of the case, the present application is allowed. In the event of arrest, the applicant is directed to be released on bail on his furnishing personal bond of Rs. 50,000/- with two sureties of like amount subject to the satisfaction of the Investigating Officer/Arresting Officer, further subject to following conditions: i. The applicant shall not leave the country without prior permission of the learned Trial Court. ii. The applicant shall intimate the learned Trial Court by way of an affidavit and to the Investigating Officer regarding any change in residential address. iii. The applicant shall appear before the learned Trial Court as and when the matter is taken up for hearing. iv. The applicant shall join investigation as and when called by the Investigating Officer concerned. v. The applicant will not try to influence the witnesses in any manner. vi. The applicant shall provide his mobile number to the Investigating Officer and intimate about any change.

28. The application is allowed and disposed of accordingly.

29. Pending applications, if any, also stand disposed of.

30. Needless to state, nothing mentioned hereinabove is an opinion on the merits of the case and any observations made are only for the purpose of the present bail application.

31. Order be uploaded on the website of this court forthwith. AMIT SHARMA, J. AUGUST 12, 2025/nk/bsr/yg