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Himachal Pradesh High Court: No Rape Offence on Promise of Marriage for Already Married Individuals
A promise of marriage may not amount to deceitful sexual intercourse when both parties are already married and aware of each other’s marital status.
Key Takeaways
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It is definitely entirely in the fitness of things that the Himachal Pradesh High Court at Shimla in a most learned, laudable, landmark, logical and latest oral judgment titled Vinod Kumar vs State of Himachal Pradesh in Cr. MP(M) No.1590 of 2026 and cited in Neutral Citation No.: 2026:HHC:37603 that was pronounced just recently on 03.09.2026 has minced no words to hold in no uncertain terms that a promise of marriage may not amount to the offence of deceitful sexual intercourse when both the accused and the victim are already married to other people and were aware of each other’s marital status. It was held explicitly by the Shimla High Court that, “There was no question of promise to marry, especially when factum of marriage of the petitioner as well victim/prosecutrix was in the know of the victim/prosecutrix as well as bail petitioner. Once victim/prosecutrix as well as petitioner had not taken divorce from their respective spouses, they otherwise could not have solemnize marriage.” The Court noted that both the accused and the woman were married to other people and neither had divorced their respective spouses. It therefore found that there was prima facie no question of a promise to marry.
We need to note here that the Single Judge Bench comprising of Hon’ble Mr Justice Sandeep Sharma made the key observations while bail was granted to Vinod Kumar who was an astrologer who was accused of sexually assaulting a 31-year-old woman on the alleged promise of marriage. Very rightly so! It must be noted that the case primarily arose from a First Information Report (FIR) that had been registered in June 22, 2026, under Section 69 of the Bharatiya Nyaya Sanhita (BNS), which pertains with sexual intercourse through deceitful means, including a false promise of marriage.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Sandeep Sharma of Himachal Pradesh High Court at Shimla sets the ball rolling by first and foremost putting forth aptly in para 1 that, “Bail petitioner, namely Vinod Kumar, who is behind the bars since 17.08.2026, has approached this Court in the instant proceedings filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, for grant of regular bail in case FIR No.12 of 2026, dated 22.06.2026, under Sections 64, 69 of Bhartiya Nyaya Sanhita and Sections 3(1)(r) and 3(1)(s)of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, registered at Women Police Station, Bilaspur, District Bilaspur, Himachal Pradesh.”
As we see, the Bench then observes in para 2 that, “Pursuant to the directions issued by this Court, respondent-State has filed status report and Sh. Madan Dhiman, Dy. Superintendent of Police (HQ) Bilaspur, District Bilaspur has come present with the record. The victim/prosecutrix has also come present. She states that she does not intend to engage any lawyer, rather she be permitted to adopt the arguments advanced by learned Additional Advocate General.”
To put things in perspective, the Bench envisages in para 3 while elaborating on the facts of the case stating that, “Close scrutiny of the status report/record reveals that on 22.06.2026, victim/prosecutrix (name withheld to protect her identity), aged 31 years, lodged a complaint at police station detailed hereinabove, alleging therein that bail-petitioner sexually assaulted her against her wishes on the pretext of marriage. She alleged that her marriage was solemnized with one Manoj Kumar in the year 2017, but subsequently on account of matrimonial discord, she was compelled to live separately. She alleged that in the year 2022, she came in the contact of the bail-petitioner, who is an astrologer by profession. She alleged that petitioner taking advantage of her innocence and adverse circumstances persuaded her to take divorce from her husband, Sh. Manoj Kumar on the ground that as per her horoscope, she has no chances of having good family life with Manoj Kumar. Complainant further alleged that bail petitioner also told her that he is also not having good relation with his wife and as such, after her divorce with Manoj Kumar, he would solemnize marriage with her. Complainant alleged that on the pretext of marriage, bail petitioner kept on sexually assaulting her against her wishes, but when it came to her notice that bail petitioner has illicit relations with several other women, she objected to the same, however, she was given merciless beatings by the bail petitioner. In the aforesaid background, FIR, as detailed hereinabove, came to be lodged against the petitioner.”
As things stands, the Bench enunciates in para 4 that, “Though, at first instance bail petitioner approached this Court by way of Cr.MP (M) No.1502 of 2026 for grant of anticipatory bail, but same was dismissed as withdrawn and petitioner herein was arrested and since 17.08.2026 he is behind the bars. Since investigation in the case is complete and nothing remains to be recovered from the bail petitioner, prayer has been made on his behalf for grant of regular bail.”
Most significantly, the Bench then encapsulates in para 7 what constitutes the cornerstone of this notable judgment postulating precisely that, “Having heard learned counsel for the parties and perused the material available on record, this Court finds that victim/prosecutrix, aged 31 years, prior to her having lodged FIR, which is the subject matter of the present case, is married to one Manoj Kumar, with whom she subsequently had some matrimonial discord. If the statement of the victim/prosecutrix recorded under Section 183 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) is perused in its entirety, it can be safely concluded that she of her own volition and without there being any external pressure joined the company of the bail petitioner and as such, this Court is not persuaded to agree with learned Additional Advocate General that bail petitioner took undue advantage of innocence and plight of the victim/prosecutrix. Victim/prosecutrix of her own went to show her horoscope to the petitioner, who allegedly persuaded her to take divorce from Shri Manoj Kumar. Victim/prosecutrix had been meeting bail petitioner since the year 2022 and during this period, bail petitioner allegedly made physical relations with her on the pretext of marriage, but interestingly, no complaint whatsoever of any kind ever came to be lodged by the victim/prosecutrix. FIR, as detailed hereinabove, came to be lodged for the first time only on 22nd June, 2026 and during afore period, victim/prosecutrix of her own volition and without external pressure had been living with the bail petitioner and as such, this Court is not persuaded to agree with learned Additional Advocate General that bail petitioner sexually assaulted victim/prosecutrix against her wishes.”
Most rationally and equally significant is that the Bench then points out in para 8 that, “Besides above, this Court finds that there was no question of promise to marry, especially when factum of marriage of the petitioner as well victim/prosecutrix was in the know of the victim/prosecutrix as well as bail petitioner. Once victim/prosecutrix as well as petitioner had not taken divorce from their respective spouses, they otherwise could not have solemnize marriage. Complaint itself suggests that petitioner had promised to marry subject to taking of divorce by the victim/prosecutrix. In view of the above, this Court is persuaded to agree with learned counsel for the petitioner that prima-facie no case much less under Section 69 of Bhartiya Nyaya Sanhita is made out against the petitioner.”
It cannot be glossed over and is worth noting that the Bench notes in para 9 that, “During proceedings of the case, Mr. Rajan Kahol, learned Additional Advocate General also attempted to argue that prayer made on behalf of the petitioner for grant of bail cannot be accepted for the reason that he, while causing injury to the victim/prosecutrix, also made casteist remarks, but having carefully perused initial statement of the victim/prosecutrix recorded under Section 154 Cr.P.C., this Court finds that no complaint with regard to casteist remarks, if any, by the petitioner was made, rather, such statement of her for the first time came to be made under Section 183 BNSS.”
Most commendably, the Bench then propounds in para 10 holding explicitly that, “Though, aforesaid aspect of the matter is to be decided by the trial Court below in totality of the evidence collected on record by the prosecution, but keeping in view the other glaring aspects of the matter, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when his guilt is yet to be established on record.”
It would be instructive to note that the Bench hastens to add in para 11 noting that, “Though, status report reveals that in past, more than 23 cases stand registered against the petitioner under IPC, but having perused details of the cases registered against the petitioner made available to this Court by counsel representing the petitioner, this Court finds that majority of cases were registered against the petitioner under the Excise Act and out of said 23 cases, he already stands acquitted in 21 cases, as per the petitioner. Though, as per statement given by the Investigating Officer nine criminal cases are pending, but having perused the information made available to this Court, which has been issued by MHC, Police Station, Ghumarwin, District Bilaspur, this Court is persuaded to agree with learned counsel for the petitioner that in 21 cases, petitioner has been already acquitted.”
Most remarkably, the Bench expounds in para 12 holding that, “Hon’ble Apex Court as well as this Court in catena of cases have repeatedly held that one is deemed to be innocent till the time guilt, if any, of his/her is not proved in accordance with law. In the case at hand also, guilt, if any, of the accused is yet to be proved in accordance with law, by leading cogent and convincing material on record, as such, his incarceration in jail for indefinite period is clear cut violation of fundamental rights guaranteed under Article 21 of the Constitution of India. Apprehension expressed by the learned Additional Advocate General that in the event of petitioner’s being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions as has been fairly stated by the learned counsel for the petitioner.”
While citing relevant case law, the Bench observes in para 13 that, “Hon’ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon’ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.”
While citing yet another relevant case law, the Bench states in para 14 that, “Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the Court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative.”
While citing yet another relevant case law, the Bench mentions in para 15 that, “In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon’ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.”
In addition, the Bench then while citing yet another relevant case law observes in para 16 that, “The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.”
As a corollary, the Bench then stipulates and holds in para 17 that, “In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioner has carved out a case for grant of bail. Accordingly, present petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs.2,00,000/- with two local sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions:
(a) he shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;
(b) he shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) he shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and
(d) he shall not leave the territory of India without the prior permission of the Court.”
For sake of clarity, the Bench clarifies in para 18 stating that, “It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.”
Further, the Bench clarifies in para 19 mentioning that, “Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The petition stands accordingly disposed of.”
Finally, the Bench then concludes by directing and holding in para 20 that, “The petitioner is permitted to produce copy of the order downloaded from the High Court Website and the trial court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.”
In conclusion, we thus see that the Himachal Pradesh High Court at Shimla has made it indubitably clear that no offence of rape on promise of marriage made out when the victim and the accused were already married and knew of each other’s marital status. It is thus a no-brainer that the bail was very rightly granted to the petitioner subject to the conditions as have been mentioned hereinabove. No denying or disputing it!
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