Pradeepta Kumar Mohapatra vs State
2013 Latest Caselaw 2864 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Crl. A. 233/2003

                                          Date of Decision: 09th July, 2013


PRADEEPTA KUMAR MOHAPATRA            ..... Appellant
                Through: Mr. S.S. Mishra, Advocate.

                             versus

STATE                                                   ..... Respondent
                             Through:       Ms. Fizani Husain, APP

CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                             JUDGMENT

: SUNITA GUPTA, J.

1. Challenge in this appeal is to the conviction order dated 3rd

April, 2003 and order on sentence dated 4th April, 2003 passed by the

learned Additional Sessions Judge in Sessions Case No. 29/2002

arising out of FIR No. 398/1998 PS Tilak Nagar under Section

420/498A/376 IPC.

2. Factual matrix of the case is:

Complainant got married to appellant on 1 st May, 1982. After

her marriage, she got an appointment in Doordarshan and thereafter

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she went under training in Pune and thereafter she was transferred to

Delhi. Her father was alleged to be the member of Parliament and

was residing in Delhi, therefore, she also shifted to the residence of

her father in Delhi. In 1993, the accused is alleged to have started

harassing complainant by saying that he would divorce her. He also

filed divorce petition against the complainant in Family Court at

Bhuvneshwar of which she received a notice. However, due to

intervention of parents of the complainant, the matter got

compromised and thereafter they continued to live together. It was

alleged that the accused assured the complainant and her parents that

he would withdraw the divorce petition and believing this version and

further believing that he might have withdrawn the petition, she

continued to live with him. The accused, however, obtained an ex

parte decree of divorce against the complainant on 6th January, 1996

but this fact was concealed by him and he continued to have sexual

intercourse with her till 1998. During this period, she allegedly

conceived thrice but she was persuaded by the accused to go for

abortion which she did. In the month of February, 1998, while going

to her office by car, she was chased by some unknown hired person

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just to frighten and harass her. In the month of February, 1996, she

got refund amount of Rs.1.75 lacs from DDA in her name. Her

husband by making false representation forced her to open a joint

account and another account with her son in Standard Chartered Bank,

Parliament Street, New Delhi. In joint account with minor son, Rs.1

lac was deposited and in another joint account with her, Rs. 75,000/-

were deposited. However, without giving any information, he

withdrew Rs.25,000/- from the joint account. On 18th March, 1998, he

quarrelled with her, assaulted her and abused her son in the room and

bolted it from outside and went away from there. She informed her

parents who got confirmation from the Family Court, Cuttack that

accused got a decree of divorce. After 2nd April, 1998, her husband

did not return back and started harassing her on telephone by using

abusive and unparliamentary language. On the basis of this

compliant, FIR under Sections 420/376/498A IPC was registered.

After completing investigation, charge sheet was submitted against

the accused.

3. Charges under Sections 498A/420/376 IPC were framed against

the accused to which he pleaded not guilty and claimed trial.

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4. In order to substantiate its case, prosecution, in all, examined

four witnesses out of whom the material witness was the complainant

herself.

5. All the incriminating evidence was put to the accused while

recording his statement under Section 313 Cr. P.C. wherein he denied

the case of prosecution. He denied that in the year of 1998, he co-

habited with complainant concealing the fact of obtaining decree of

divorce against her. His case was that he was not staying with the

complainant since 1990 and only used to go to her residence

occasionally in day time to see his son. He examined himself in his

defence as DW1 as well as DW2 Pradeep Kumar Puri.

6. After hearing learned counsel for the parties, learned Trial

Court came to the conclusion that neither any offence under Section

420 IPC or 498A IPC or 376 IPC was made out, however, it was

observed that since the accused concealed the factum of obtaining ex

parte decree of divorce and continued to co-habit with the

complainant, offence under Section 493 IPC is made out.

Accordingly, vide order dated 3rd April, 2003 he was convicted of

offence under Section 493 IPC and vide order dated 4th April, 2003,

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he was sentenced to undergo rigorous imprisonment for one year and

was also directed to pay a sum of Rs.50,000/- as compensation to the

complainant. Feeling aggrieved by this order, the present appeal has

been preferred.

7. It was submitted by learned counsel for the appellant that the

essential ingredients of Section 493 IPC are not fulfilled in the instant

case inasmuch as it is the admitted case of the parties that the

complainant was legally wedded wife of the appellant. There are no

allegations that the appellant deceived the complainant into believing

that they were lawfully married or under that deception, they

cohabited together. Moreover, before the learned Trial Court itself,

complainant had stated that she had compromised the matter with the

accused and did not want to proceed further. That being so, the

impugned order deserves to be set aside.

8. Per contra, it was submitted by the learned Public Prosecutor

that for the misdeeds committed by the appellant, he is liable to

compensate her and as such, the appellant should at least give

compensation to the complainant.

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9. Factual matrix of the case is not much in dispute, inasmuch as it

is undisputed case of the parties that the complainant got married to

appellant on 1st May, 1982. Out of the wedlock, one son was born.

Things, however, did not go smoothly. As such, divorce petition was

filed by the appellant at Bhuvneshwar. Although, initially the

complainant had taken a plea that she was not aware about filing of

the divorce petition, however, it was proved on record that she did

received notice of the divorce petition and put her appearance before

the Family Court at Cuttack on 1st October, 1993. With the

intervention of parents of the complainant, the matter was

compromised and the appellant assured the complainant and her

parents that he would withdraw the divorce petition. However, the

petition was not withdrawn which remained pending from 1993 to

1996 and the decree of divorce was granted by the Family Court at

Cuttack on 6th January, 1996. The appellant has taken a plea that he

has been staying separately since 1987. He used to visit his wife‟s

house sometimes to see his son but never stayed in her house nor

cohabited with her. Complainant, in her cross-examination although

admitted that her husband used to work in Bahadurgarh since 1991

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and had been staying there but further stated that he used to visit her

in Delhi regularly and used to stay with her on Saturday and Sunday.

She denied the suggestion that he used to come to her place only to

see her son in day time. In fact, the appellant himself put suggestion

to the complainant that during the period of 1996 to 1998 he resided

with her and had relationship as that of husband and wife. Thus,

when such a suggestion was given by the accused himself, it was

rightly observed by learned Trial Court that it was admission on his

part that during 1996-1998 he resided with the complainant as her

husband and cohabited with her. In nut shell, the facts which emerge

from the evidence coming on record are that the complainant was the

legally wedded wife of the appellant, however, a divorce petition was

filed. Appellant assured the complainant to withdraw the divorce

petition. Complainant remained under the belief that divorce petition

must have been withdrawn by the appellant. However, it remained

pending and the decree of divorce was granted only on 6th January,

1996. During the period from 1996-1998, they continued to live

together and co-habited as husband and wife.

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10. The sole question for consideration is whether under these facts

and circumstances, offence under Section 493 IPC is made out or not.

11. Section 493 IPC reads as under:-

"493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage.- Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

12. The Section contains two ingredients:

(i) Deceitfully causing a false belief in the existence of a

lawful marriage and (ii) co-habitation or sexual intercourse with

the person causing such belief.

13. The essence of an offence under Section 493 IPC is,

therefore, practice of deception by a man on a woman as a

consequence of which the woman is led to believe that she is

lawfully married to him although she is not and then make her co-

habit with him.

14. Stroud's Judicial Dictionary (5th Edn.) explains "deceit" as

follows:

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"Deceit.- „ "Deceit", deceptio, fraus, dolus, is a subtle, wily shift or device, having no other name; hereto may be drawn all manner of craft, subtilly, guile, fraud, wilinesse, slight, cunning, coven, collusion, practice, and offence used to deceive another man by any means, which hath none other proper or particular name but offence‟."

Black's Law Dictionary (8th Edn.) explains "deceit" thus:

"Deceit, n. -(1) The act of intentionally giving a false impression <the juror's deceit led the lawyer to believe that she was not biased>. 2. A false statement of fact made by a person knowingly or recklessly (i.e., not caring whether it is true or false) with the intent that someone else will act upon it."

In The Law Lexicon by P. Ramanatha Aiyar (2nd Edn., Reprint

2000), "deceit" is described as follows:

"Deceit.- Fraud; false representation made with intent to deceive; 'Deceit, "deception of fraud" is a subtle, wily shift or device, having no other name, In this may be included all manner of craft, subtlety, guile, fraud, wiliness, slight, cunning, coven, collusion, practice and offence used to deceive another may by any means, which hath none other proper or particular name but offence'."

15. "Deceit", in the law, has a broad significance. Any device or

false representation by which one man misleads another to his

injury and fraudulent misrepresentations by which one man

deceives another to the injury of the latter, are deceit. Deceit is a

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false statement of fact made by a person knowingly or recklessly

with intent that it shall be acted upon by another who does act upon

it and thereby suffers an injury. It is always a personal act and is

intermediate when compared with fraud. Deceit is sort of a trick or

contrivance to defraud another. It is an attempt to deceive and

includes any declaration that misleads another or causes him to

believe what is false.

16. If a woman is induced to change her status from that of an

unmarried to that of a married woman with all the duties and

obligations pertaining to the changed relationship and that result is

accomplished by deceit, such woman within the law can be said to

have been deceived and the offence under Section 493 IPC is brought

home. Inducement by a person deceitfully to a woman to change her

status from unmarried woman to a lawfully married woman and on

that inducement making her cohabit with him in the belief that she is

lawfully married to him is what constitutes an offence under

Section 493. The victim woman has been induced to do that which,

but for the false practice, she would not have done and has been led to

change her social and domestic status. The ingredients of

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Section 493 can be said to be fully satisfied when it is proved - (a)

deceit causing a false belief of existence of a lawful marriage and (b)

cohabitation or sexual intercourse with the person causing such

belief.

17. In order to commit deceitfully causing a false belief in the

existence of a lawful marriage some misrepresentation by the offender

is necessary. Mere omission to mention or even suppression of the

fact of divorce does not bring one within the mischief of the first

ingredient of Section 493 of the Indian Penal Code. That it is so, will

be apparent if we refer to Section 415 Indian Penal Code, which

defines „cheating‟. This Section reads as under:-

415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to" cheat".

Explanation.- A dishonest concealment of facts is a deception within the meaning of this section.

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18. A perusal of Section 415 IPC makes it clear that the word

„deception‟ is also found but the explanation appended to this Section

makes it clear that a dishonest concealment of facts is also a

deception within the meaning of this Section. However, such an

explanation is missing under Section 493 of the Indian Penal Code.

Section 493, Indian Penal Code, contemplates of punishing a man

either married or unmarried who induces a woman to think that she is

his wife but in reality she is concubine. Such an offence can be

committed by a person by inducing a woman to believe that she is

lawfully married to him although in fact there is no legal or valid

marriage between them in the eyes of law and thereby to co-habit or

have sexual intercourse with him.

19. In Kaumuddin Sheikh vs. State (1997) ILR 2 CAL 365, facts

were substantially the same. In that case, the husband gave

irrevocable „Talak‟ and continued to live as husband and wife. It was

held that it was not the case of prosecution that even though a valid

and effective „Talak‟ was given to the complainant, the appellant

caused her to believe that there was no such valid or effective „Talak‟

and thereby managed to co-habit or have sexual intercourse with her

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in the belief that she continues to be legally married wife of the

appellant. It was a case where the appellant is said to have sexual

intercourse with the complainant by not mentioning or suppressing the

„Talak‟. From such non-mention or suppression of the „Talak‟, it

cannot be said that the appellant by deceit caused complainant to

believe that she was lawfully married to him and to co-habit or have

sexual intercourse with him in that belief. It may be that the appellant

suppressed the „Talaknama‟ to complainant but he is not alleged to

have made any misrepresentation to her as to cause her to believe that

she continues to be his legally married wife and induced her to co-

habit or have sexual intercourse with him in that belief. This being

the position, it was held that the case does not fall within the four

corners of Section 493 of the IPC and the conviction of the appellant

was set aside.

20. Things are substantially the same in the instant case, inasmuch

as, it stands proved that the filing of the divorce petition by the

appellant was within the knowledge of the complainant inasmuch as

she had also caused her appearance before Family Court at Cuttack on

1st October, 1993. The whole case of prosecution revolves around the

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fact that an assurance was given by the appellant that he would

withdraw the divorce petition, despite that, he did not withdraw the

same. Complainant remained under the impression that he must have

withdrawn the petition and under that belief continued to co-habit

with him. Complainant was an educated lady, therefore, she should

have ensured that the divorce petition had been withdrawn by the

appellant. However, she believed the assurance given by the appellant

and then stayed with him. However, it is not the case of the

prosecution that the appellant, at any point of time, caused the

complainant to believe that the divorce petition had been withdrawn

or under that belief the complainant continued to cohabit or have

sexual intercourse with him in the belief that she continues to be the

legally married wife of the appellant. The allegations at the most are

that the appellant continued to have sexual intercourse with

complainant by non-mentioning or suppressing the factum of divorce.

From such non-mention or suppression of divorce, it cannot be said

that the appellant by deceit caused complainant to believe that she was

lawfully married to him and to co-habit or have sexual intercourse

with him in that belief. It may be that the appellant suppressed the

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factum of obtaining divorce decree from the complainant, but he was

not alleged to have made any representation to her as to cause her to

believe that she continues to be his legally married wife and induced

her to co-habit or have sexual intercourse with him in that belief. That

being so, the case is not covered within the four corners of Section

493 IPC.

21. There is another aspect of the matter. The complainant in her

deposition, before the Court had categorically stated that she had

settled her disputes with the appellant and she does not want to pursue

her complaint and the consequent case. Under those circumstances, it

was even otherwise futile to proceed further with the case.

22. In the result, the appeal is allowed. The orders of conviction

and sentence passed by learned Additional Sessions Judge against the

appellant are set aside. He be discharged from his bail bonds.

23. Trial Court record be sent back.

SUNITA GUPTA (JUDGE) July 09, 2013 rs

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