Continuing Relationship After Knowing Man Was Married Raises Doubt Over False Promise Of Marriage Claim: J&K And Ladakh High Court

The Court was hearing a petition challenging the Principal Sessions Judge, Samba’s refusal to grant anticipatory bail in a case registered under Sections 69, 83, 88 and 115(2) of the Bharatiya Nyaya Sanhita, 2023.

A Bench of Justice Sanjay Dhar observed: “The prosecutrix, as per her own statement, despite knowing that the petitioner had a family, including two children, and that his mother and wife were not in favour of his divorce from his wife, continued to maintain the relationship with the petitioner and entered into a marriage which, to her own knowledge, was not valid in law. From these circumstances, it can prima facie be inferred that her relationship with the petitioner was consensual in nature. Although initially she may not have been aware of the marital status of the petitioner, her subsequent conduct of continuing the relationship with him despite knowing his marital status gives rise to an inference that her relationship with the petitioner was not based upon a misconception of fact.”

The Bench, accordingly, held: “Having regard to the foregoing discussion, particularly keeping in view the fact that the prosecutrix continued her relationship with the petitioner despite knowing his marital status, her conduct in levelling allegations on account of a false promise of marriage against the petitioner creates a genuine doubt, which the Investigating Agency will have to address and answer during the course of investigation of the case, so as to ascertain whether the ingredients of cheating are made out in the present case.”

Senior Advocate K. Nirmal Kotwal appeared for the petitioner. Deputy Advocate General Vishal Bharti represented the Union Territory, while Advocate Vasudha Sharma appeared for the complainant.

Background

The complainant and the petitioner were police officials posted at the same police station when they came into contact and began a relationship. According to the complaint, the petitioner proposed marriage, and they subsequently lived together for several months.

She alleged that the petitioner initially concealed his existing marriage and persuaded her to terminate two pregnancies by assuring her that they would marry. She stated that she continued the relationship after discovering his marital status because he assured her that he intended to divorce his wife and marry her.

The complainant further alleged that they later underwent a marriage ceremony despite the subsistence of his first marriage. She claimed that the petitioner discontinued contact after learning that she was pregnant again.

An Additional Superintendent of Police conducted a fact-finding inquiry. The Inquiry Officer obtained the petitioner’s responses to a questionnaire, examined photographs of the marriage ceremony and recorded the statement of the priest who had performed it. The Inquiry Officer recommended a detailed investigation, following which the criminal case was registered.

The Sessions Court rejected the petitioner’s request for anticipatory bail after observing that the material supported the allegation that he had repeatedly promised marriage to obtain sexual favours without fulfilling those promises.

Before the High Court, the petitioner contended that the complaint itself disclosed a prolonged consensual relationship between two adults. The Union Territory alleged that he was absconding and might influence witnesses, while the complainant submitted that the police department was protecting him.

Court’s Observations

The Court referred to the principles governing anticipatory bail laid down by the Supreme Court in Gurbaksh Singh Sibbia and Others v. State of Punjab (1980) and Sushila Aggarwal v. State (NCT of Delhi) (2020).

It noted that the nature and gravity of the allegations, the attributed role, the accused’s conduct and the possibility of abscondence or witness interference were relevant considerations. At the same time, the prima facie genuineness of the accusation also required consideration.

The Court observed: “There is no doubt about the fact that the offences for which the petitioner has been booked are grave in nature, and there is no quarrel with the proposition of law that the gravity of the offence and the severity of punishment are important considerations while considering a plea for grant of anticipatory bail to the accused. However, a prima facie view of the genuineness of the charge against the accused is a factor which is always required to be considered.”

The Court noted that the complainant might initially have been unaware that the petitioner was married. However, according to her own account, she continued the relationship after learning that he had a wife and two children.

She also underwent a marriage ceremony with him despite being aware that the subsisting marriage rendered their marriage legally invalid. The Court found that the case was not one where the petitioner had concealed his marital status while inducing her to undergo the ceremony.

It observed: “It is not a case where the petitioner, after concealing his marital status, induced the prosecutrix into a wedlock; rather, it is a case where both of them were aware that the petitioner was a married person and that his second marriage during the subsistence of his first marriage was not valid. Thus, prima facie it can be stated that while the petitioner developed physical relationship with the prosecutrix he did not obtain her consent on the belief that her marriage with the petitioner is valid.”

The Court relied on Mahesh Danu Khare v. State of Maharashtra (2024), in which the Supreme Court distinguished a false promise made from the outset with an intention to deceive from a promise that could not subsequently be fulfilled.

Quoting the Supreme Court, it noted: “In our opinion, the longer the duration of the physical relationship between the partners without protest and insistence by the female partner for marriage would be indicative of a consensual relationship rather than a relationship based on false promise of marriage by the male partner and thus, based on misconception of fact.”

Applying that decision for the limited purpose of considering bail, the High Court observed that the parties had lived together for more than a year. During this period, the complainant learned about the petitioner’s marital status but continued the relationship in the hope that he would divorce his wife and marry her.

The Court clarified that it was not undertaking a detailed assessment of the evidence or expressing a final view on the allegations. The doubts emerging from the complainant’s account would have to be addressed by the investigating agency.

The Court stated: “Although it would be premature for this Court to deeply analyze the material collected by the Investigating Agency in support of its case against the petitioner, yet, for the limited purpose of deciding this application, it does appear that there is force in the contention of the petitioner that the promise of marriage by a married man to a woman is improbable and that it is highly unlikely that an unmarried woman would give her consent to having a sexual relationship with a married man by believing his promise of marriage.”

The Court rejected the investigating agency’s assertion that the petitioner was absconding or refusing to cooperate. It noted that he had appeared before the Inquiry Officer and answered the questionnaire served upon him.

The Court observed: “It is not the case of the police department that the petitioner is not attending his duties; therefore, the very assertion of the Investigating Agency that the petitioner is absconding cannot be believed.”

It further noted that, as a police employee, the petitioner remained under both the investigative and disciplinary control of the department. The possibility of his absconding was consequently found to be minimal.

Conclusion

The High Court allowed the petition and directed that the petitioner be released on bail in the event of his arrest upon furnishing a bail bond of ₹50,000 and a personal bond of the same amount.

The petitioner was directed to remain available to the Investigating Officer, appear whenever required and refrain from obstructing the investigation or influencing prosecution witnesses. He was also restrained from leaving the Union Territory of Jammu and Kashmir without the Investigating Officer’s prior permission.

The investigating agency was granted liberty to seek cancellation of bail if any condition was violated.

Cause Title: Vikrant Kotwal v. U.T. of J&K and Another (Neutral Citation: 2026:JKLHC-JMU:2878)

Appearances

Petitioner: Senior Advocate K. Nirmal Kotwal, assisted by Advocate R.S. Isher

Respondents: Deputy Advocate General Vishal Bharti; Advocate Vasudha Sharma

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