Jharkhand High Court: While deciding a criminal petition, the bench of Sanjay Kumar Dwivedi, J., held that when a married woman established a relationship with another man, Section 376(2)(n) of Penal Code, 1860 (“the IPC”) cannot be attracted.
Background
In the case at hand the petitioner met the woman and found out that she was married, and a divorce litigation was pending with her earlier husband. In due course, the petitioner established physical relations with that married woman (respondent) by making false pretext of marriage. Thereafter, the petitioner refused to marry her and therefore, she registered a case against the petitioner under Section 376(2)(n) of the IPC.
Submissions on behalf of the respondent
The counsel for the wife contended that if on the pretext of marriage, the relationship is established, the case under section 376 of IPC can be maintained.
Analysis, Law, and Decision
The question before the Court was thatwhen two adults have established relationship particularly considering that the woman is married, whether section 376(2)(n) IPC can be attracted or not?
The Court noted that despite the knowledge that she cannot marry the petitioner since she was married, she voluntarily had sex with the petitioner.
The Court further stated that the promise to marry cannot be a basis for prosecution under section 376(2)(n) of the IPC since she knew that she is a married woman and marriage will not take place, and despite that she has established a relationship with the petitioner.
The Court concluded that the question of alluring by the petitioner does not arise as the married woman cannot be allured for establishing the relationship with the petitioner. Thus, the Court answered the question in negative and held that a promise to marry a married woman is illegal and cannot be a basis for prosecution under section 376(2)(n) of the IPC.
[Manish Kumar Sharma v. State of Jharkhand, 2022 SCC OnLine Jhar 1559, decided on 06-12-2022]
Advocates who appeared in this case :
Counsel for Petitioner:- Advocate Prachi Pradipti;
Counsel for Opposite Parties:- Advocate Shailendra Kumar Tiwari, Advocate Sumit Prakash.
