Refusal To Marry After Sexual Relations Not Cheating: Bombay HC

• In the case of Kashinath Narayan Gharat vs. The State of Maharashtra, the Hon’ble Bombay HC has held mere refusal to marry a woman after a long period of sexual relations would not amount to cheating as enshrined in section 417 of IPC if no fraudulent misrepresentation is done by the accused.
• The victim in the present case alleged in the Trial Court that the accused had sexual relations with her on the pretext of marriage and then later he refused to marry her. Aggrieved by this, she approached the Court and the man was charged with section 376 and 417 of IPC. he was later acquitted of rape but was held guilty of the offence of cheating.
• The accused then approached the HC which observed the following:
• “In the absence of evidence to prove that the prosecutrix had consented to sexual relationship on a misconception of fact, as stipulated under section 90 of IPC, the mere refusal to marry would not constitute offence under section 417 of IPC”.
• Relying on the decision of the Hon’ble SC in the case of Maheshwar Tigga vs. The State of Jharkhand (2020) SCC the Court observed that the consent given under a misconception of fact as envisaged by section 90 of IPC is no consent in law,“but the same has to be proximate to the incident and should not be spread over a period of three years, as in the present case”.
• The Court further observed that “the evidence of the prosecutrix does not show that she had sexual relationship with the respondent under a misconception of fact, with regard to the promise of marriage or that her consent was based on fraudulent misrepresentation of marriage. There is no evidence on record to indicate that the accused did not intend to marry her since the inception”.
• In the light of the aforesaid deductions, the HC acquitted the accused.

And now, a question for our aspirants-
Which provision of the Indian Evidence Act provides that it is on the accused to prove that his case comes within any of the exceptions contained in IPC?