We have heard the learned
counsel for the parties and perused the paper book. Firstly, we refer to
the stand taken by the complainant in the FIR and the statement she got
recorded under Section 164 of Criminal Procedure Code. There are discrepancies
therein. In the FIR, she stated that she was managing her own cloth shop.
As there was a dispute with her husband, she was living separately. On
10.12.2018, she got divorce from her husband. She has a daughter aged 15 years.
In 2017, Superfine Company had taken first floor100 of their house on rent in which
the appellant, who was working with the company, stayed. During spare time,
he120 would come and
sit at her shop. Gradually, the relations developed.
As she was living separate from her husband, the appellant
proposed that in case she takes divorce, he will marry her. After the divorce
of the complainant, on 10.01.2019, at about 11.00 PM, the appellant came to her
room and had physical relations. He did not stop even when she said that
they were yet to be married. Further, on a promise to marry, he200 had relations with her on
06.06.2020. When she insisted for marriage, the appellant said that his family
was not agreeing. Finally, he refused on 11.12.2020. Thereafter, the FIR was
got recorded on240 11.12.2020.
While getting her statement recorded under Section 164 of Criminal
Procedure Code, she admitted that she knew the appellant since 2017. On
account of dispute with her husband, she was living with her parents. As
she got acquainted with the appellant, they fell in love. In 2018, the
appellant300 went to Delhi for job. However, he used to visit her home and
take care of the complainant as well as her daughter. In 2019, the
appellant assured the complainant that he will marry her in case she
takes divorce from her husband who used to harass and beat her.
For this reason, she divorced her
husband and360 solemnized marriage with the appellant in a temple in
January 2019. Thereafter, they started living together with her daughter born
from the previous marriage. Despite assurance, the appellant did not solemnize
court marriage. After marriage was solemnized in400 temple, treating the appellant as
her husband, they both started leading a married life having physical relations
from January 2019 till June 2020. The appellant treated the complainant as his
wife. Thereafter, the appellant refused to respond to her calls and even marry
her.
There was complete change in the stand of the complainant in
her statement recorded under Section 164 of Criminal Procedure Code.
The fact remains that the parties admittedly were in480 relations from 2017 onwards. Some
alleged promise to marry came in January 2019, from where they500 started having physical relations.
It has also come on record that it is not only the consent of the
complainant which is clearly evident but also of the parents and daughter of
the complainant as they were living in the same house, where allegedly
the appellant and the complainant were having physical relations.
Further, in the FIR the complainant stated that she got divorce
from her earlier husband on 10.12.2018. In the statement under Section 164 of Criminal
Procedure Code, she stated that marriage between the appellant and the
complainant was solemnized in a600 temple in January 2019. However, the date of divorce as claimed
by the complainant is belied from the copy of the decree annexed with the
appeal as Annexure P-9, where divorce by mutual consent was granted to the
complainant and her husband vide judgment dated 13.01.2021.
The aforesaid fact could not be disputed. The complainant,
besides the facts in the FIR and also in the statement under Section 164 of Criminal
Procedure Code regarding her divorce from the earlier marriage, sought to claim
that she had re-married with the appellant700 during subsistence of her
earlier marriage.
From the contents of the complaint, on the basis of
which FIR was got720 registered and the statement got recorded by the complainant, it
is evident that there was no promise to marry initially when the
relations between the parties started in the year 2017. In any
case, even on the dates when the complainant alleges that the parties had
physical relations, she was already married. She falsely claimed that divorce
from her earlier marriage took place on 10.12.2018.
However, the fact remains that decree of divorce was800 passed only on 13.01.2021. It
is not a case where the complainant was of an immature age who could not
foresee her welfare and take right decision. She was a grown-up lady about ten
years840 elder to the
appellant. She was matured and intelligent enough to understand the
consequences of the moral and immoral acts for which she consented
during subsistence of her earlier marriage.
In fact, it was a case of betraying her husband. It is the
admitted case of the prosecutrix that even after the appellant shifted
to Maharashtra for his job, he900 used to come and stay with the family and they were living as husband
and wife. It was also the stand taken by the appellant that he had
advanced loan of ₹1,00,000/- to the prosecutrix through banking channel which
was not returned back.944
