delhi high court

Delhi High Court: In a case wherein, a writ petition was filed by the petitioner under Article 226/227 of the Constitution read with Section 482 of Criminal Procedure Code, 1973 (‘CrPC’) seeking to quash the FIR registered under Sections 376, 323, 506, 509 and 427 of Penal Code, 1860 (‘IPC’), Swarana Kanta Sharma, J.* opined that there was no valid basis for Respondent 2 to entertain the notion of promise of a marriage from the petitioner as by virtue of her existing marriage she was ineligible to marry the petitioner and thus quashed the impugned FIR.


On 13-10-2022, the FIR was registered based on the complaint filed by Respondent 2 who stated that the petitioner had met her for the first time in September 2021 and had promised to marry her and on false promise of marriage, the petitioner forcibly developed physical relations with her. After a month, the parties prepared an agreement for live-in-relationship in which the petitioner mentioned himself as bachelor.

Respondent 2 further stated that she made the petitioner meet her parents and when she requested to meet the petitioner’s parents, the petitioner always made excuses. In May 2022, Respondent 2 came to know that the petitioner was already married and had concealed this fact from her. Thereafter, the petitioner promised Respondent 2 that he had already applied for divorce from his wife and would divorce her within six months. Thus, both of them continued their relationship and it was alleged on 29-4-2022, that the petitioner visited her, and he intentionally fought with her and forcibly made physical relationship with her on the pretext that he would marry her soon. Thereafter, Respondent 2 became pregnant, but the petitioner stopped attending Respondent 2’s phone call. Thus, Respondent 2 filed the complaint and got the FIR registered. Thereafter, the petitioner filed the present petition to quash the impugned FIR and stated that Respondent 2 was already married and had a child and n the pretext of being estranged from her husband, Respondent 2 had chased the petitioner and had enchased the fact that the petitioner was staying away from his wife. The petitioner further stated that Respondent 2 herself drafted the live-in relationship agreement and forged the petitioner’s signature. The petitioner contended that when he refused to live with Respondent 2, she got furious and filed a complaint with his superiors. The petitioner further contended that when she failed to live with him and her attempt to threaten the petitioner’s wife did not succeed, she filed the complaint.

Analysis, Law, and Decision

The Court upon perusal of the live-in relationship agreement opined that Respondent 2 had herself signed the document stating that she had entered into the relationship without being influenced in any manner by the petitioner. The Court opined that the petitioner’s contention that Respondent 2 had forged his signatures on the live-in relationship agreement, did not inspire the truth on the face as there was no need for Respondent 2 to write that the petitioner was unmarried and if Respondent 2 forged the petitioner’s signature, she could have also mentioned that the petitioner promised to get married to Respondent 2.

The Court relied on Shambhu Kharwar v. State of U.P. 2022 SCC OnLine SC 1032 and noted that Respondent 2 was a major and had entered into a relationship with the petitioner out of her own free will and the live-in relationship agreement did not refer to any promise related to marriage or any other incidental details in relation to any intention of marriage between them.

The Court opined that by the time when Respondent 2 came to know about the petitioner’s marital status, she herself was going through the adjudication of her own divorce and would have known that the grant of divorce within six months could not have been in the hands of parties as the same was a complex legal process. Further, the Court opined that her decision to continue with the relationship even after knowing about everything indicated her consent towards maintaining the relationship.

The Court opined that “every act of perceived immoral conduct by societal standards may not be criminal within the parameters of the law.” Further, the Court opined that the parties conduct in the present case might not be morally correct, but the two consenting adults entered into live-in relationship knowing that they were not eligible to marry each other, therefore some might consider their actions immoral, but it did not meet the requirement of Section 376 of the IPC.

The Court opined that “Statutory interpretations cannot be replaced by moral judgments. When the law contains a moral element, the Court is competent to decide it on the moral basis, however, in a purely legal way. It cannot substitute the statutory law and its ingredients by incorporating its own moral concerns and substituting criminality in a case where no statute makes it criminal, but judge’s own sense of morality makes it so.”

The Court opined that when Respondent 2 was not legally eligible to marry someone else due to her existing marriage to another partner, she could not have claimed to induce into a sexual relationship under false pretext of marriage. Thus, the protection and remedies that were available under Section 376 of the IPC could not be extended to a person who was not legally entitled to marry the person with whom she was in sexual relationship with. The Court relied on Joseph Shine v. Union of India, (2019) 3 SCC 39 and opined that in the present case, the action of the parties could not be considered as an offence.

The Court observed that a critical aspect of the case was Respondent 2’s marital status as she was not legally divorced and thus the petitioner could not have entered into a legal marriage with Respondent 2. Consequently, there was no valid basis for Respondent 2 to entertain the notion of a marriage from the petitioner, as she by virtue of her existing marriage was ineligible to marry the petitioner.

The Court held that for the offences mentioned in FIR, there was nothing in record to suggest the commission of offences under Sections 427, 509 and 506 of the IPC. Also, the Trial Court in its order dated 10-04-2023 framed charge only under Section 376 of IPC against the petitioner.

Thus, the Court quashed the impugned FIR registered for offences under Sections 376, 323, 506, 509 and 427 of the IPC and accordingly, dismissed the petition.

[S. Rajadurai v. State (NCT of Delhi), 2023 SCC OnLine Del 5919, decided on 13-09-2023]

*Judgment authored by- Justice Swarana Kanta Sharma

Advocates who appeared in this case :

For the Petitioner: S. Selva Kumari, Advocate;

For the Respondents: Rupali Bandhopadhya ASC for the State with SI Durgesh and Akshay Kumar, Abhijeet Kumar, Varun Kumar, M.D. Jangra and Shitanshu, Advocates.

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