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Synopsis

The Calcutta High Court recently overturned a trial court's decision whereby a man had been convicted under Section 417 (punishment of cheating) of the IPC for inducing a woman to have sexual relations with him in exchange for the promise to marry her after getting a divorce from his first wife.

The single judge bench of Justice Siddhartha Roy Chowdhury observed that the victim woman was aware of the situation and still she decided to live together with the accused, therefore the promise of marriage, after divorce, by itself did not amount to cheating.

“In order to invoke the provision of Section 415 of I.P.C., the prosecution is under obligation to prove that the accused person induced the victim to indulge in any such sexual relationship with him,” the court said.

Gaurav Bir Basnet ( present appellant) filed an appeal against the conviction order of the Trial Court, Alipore. The trial court had convicted him for the offence of cheating and sentenced him to pay a fine of Rs. 10,00,000.

According to the prosecution case, the victim had agreed to live with the accused in his apartment. The accused spoke to the victim’s parents and assured them of his divorce proceeding with his first wife. The victim stated that everyone in the building thought that they were a married couple for 11 months. They also went on trips together. Further, she stated that she had indulged in a sexual relationship with Basnet who gave her a rosy picture of happily married conjugal life.

On February 14, 2015, the accused left for Bombay. After coming back he denied the decision of getting a divorce from his wife as this could adversely affect his daughter as well as the prestige of his family in society.

Therefore, the victim woman filed a case against the accused person under Section 417/376 of the IPC.

The accused being aggrieved by the order of the trial court filed an appeal before the present court.

Counsel appearing for the appellant argued before the present bench that his client did not suppress any fact pertaining to his personal life. He was sincere in the relationship but he had to change his mind for the future of his daughter.

He further submitted that the victim was aware of his failed marriage and still, she had decided to live with him. There is no reason to hold that she took the decision to stay with the accused person under any misconception of fact.

He also argued that the trial court committed an error in recording the order of conviction under Section 417 of IPC.

The victim’s counsel submitted that there had been no such assurance that the appellant would take steps to dissolve his first marriage and therefore victim decided to live with him relying upon the promise made.

The court after hearing the parties observed that the victim was aware that the appellant was married and had a daughter but was living apart from his wife upon mutual agreement. 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.

“The promise of marriage, so made by the accused person, was not a promise simpliciter, it was contingent on the dissolution of his marriage, that was subsisting,” the court said.

Further, the court mentioned that the element of uncertainty was there since the inception of such a relationship and the victim, consciously accepted such risk of uncertainty.

“The promise of marriage, after divorce, by itself does not amount to cheating.”

The court stated that the prosecution had not been able to prove his case and the trial court committed an error in recording the order of conviction.

The present bench allowed the appeal and set aside the impugned conviction for the alleged offence under Section 417 of IPC.

Case Title: Gaurav Bir Basnet @ Gaurav Basnet v. The State of West Bengal & Anr.

Statute: Section 415& 417 IPC