Failure to deliver on promise of marriage to live-in partner after divorce from wife will not amount to cheating: Calcutta High Court

The Calcutta High Court recently held that if a man tells his live-in partner that he will marry her after obtaining divorce from his wife but fails to do so later, he cannot be booked for the offence of cheating under Section 417 of the Indian Penal Code (IPC) [Gaurav Bir Basnet @ Gaurav Basnet vs State of West Bengal]..Single-judge Siddhartha Roy Chowdhury was seized of an appeal filed by one Guarav Basnet, who challenged his conviction under section 417 (cheating) and 376 (rape) for raping his live-in partner on the false promise of marriage. The judge noted that the victim in the instant case had alleged that the accused maintained sexual relations with her on the promise that he would marry her after taking divorce from his wife, who lived in Mumbai. The judge further noted the fact that the accused had at the very inception of their relationship, informed the victim that he was married and also had a daughter. "Thereafter, she agreed to live together with the appellant and for that she shifted to the flat of the appellant, as there was a promise, made by the appellant to marry her, after the dissolution of his first marriage. They stayed together as couple for 11 months," the bench noted.However, when the accused went to Mumbai for completing the divorce proceedings, he could not do the same and he changed his mind. "When he came back from Bombay, she found a changed man, who expressed his inability to go for divorce, as it would affect his daughter adversely and would cause damage to his family reputation. Thus it can be safely said that the promise of marriage, so made by the accused person, was not a promise simplicitor - it was contingent on dissolution of his marriage, that was subsisting," the judge underscored.The judge said that the complainant was aware of the situation and decided to live together with the accused, who alone did not have the competence to dissolve the marriage. Either his wife would have to agree or he would have to make out a case for decree for divorce, the Court said. "Therefore, element of uncertainty was there since inception of such relationship. Victim consciously accepted such risk of uncertainty. The ‘changed man’ could not go for divorce. Therefore, the promise of marriage, after divorce, by itself does not amount to cheating," the bench ruled..As per the facts of the case, the accused told the victim about his married life and also the fact that he had a daughter. He even told her that he could marry her only after giving divorce to his first wife. She agreed to this and then shifted in the accused's apartment and lived with him for over 11 months as 'husband and wife.' She even left her job on the appellant's insistence.However, after the appellant refused to marry her as he could not divorce his first wife, she filed a complaint with the Pragati Maidan Police Station. He was subsequently arrested and later convicted for the said offence. The Court while convicting the accused also imposed a fine of ₹10 lakh of which ₹8 lakh was ordered to be paid to the victim and rest to the State. However, the High Court by its order pronounced on April 25, acquitted him of the charge. "In my opinion, prosecution has not been able to prove that since the inception the accused person had this evil design to exploit the victim both financially and sexually. In my humble opinion, the Trial Court got swayed by extraneous issues and committed error in recording the order of conviction which should not be allowed to remain in force and should be set aside, which I accordingly do," the Court held. .Advocates Bibaswan Bhattacharyya and Bindia Paul appeared for the Accused. Advocates Rahul Ganguly and A Santra appeared for the Victim.Advocates Joydeep Das and Sujata Das represented the State..[Read Order]