# Brij Mohan Kushwaha v. State of U.P. & Ors

- **Citation:** (2021) 7 ILRA 646
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-07
- **Case number:** Misc. Bench No. 13935 of 2021
- **Bench:** Ramesh Sinha, Narendra Kumar Johari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brij-mohan-kushwaha-v-state-of-u-p-ors-47247
- **Pages:** 4

## Headnote

A. Indian Penal Code (45 of 1860) -
Section 493 - Cohabitation caused by a
man deceitfully inducing a belief of lawful
marriage - Ingredients - there must be
averment that the accused deceitfully
made to believe the victim woman that
they have been lawfully married - accused
must induce a woman, who is not lawfully
married to him, to believe that he is
married to her and as a result of the
aforesaid
representation,
the
woman
should believe that she was lawfully
married to him and there should be
cohabitation or sexual intercourse as a
result of the deception - where the woman
fully knew that no ceremony of marriage
took place between then, there is no
question of believing otherwise - mere
promise
to
marry
&
having
sexual
relationship with the victim does not
prove offence u/s 493 I.P.C. (Para
11,12,13)

B. Criminal Law - Criminal Procedure Code,
1973 - Section 198 - Prosecution for
offences against marriage. - Scope - No
Court shall take cognizance of an offence
punishable under Chapter XX of the Indian
Penal Code (which contains S. 493 I. P. C.)
except upon a complaint made by some
person aggrieved by the offence - F.I.R.
cannot be registered for the offence u/s 493
I.P.C. - at the most, if complainant is
aggrieved, she ought to have filed a
complaint under Section 198 Cr.P.C. before
the competent authority (Para 15)

Allowed. (E-4)

List of Cases cited:

## Text

646 INDIAN LAW REPORTS ALLAHABAD SERIES
226 of the Constitution of India to decide
disputed questions of fact.

5. No appeal lies against an order of
cancellation of such lease under Rule 59 of
the U.P. Revenue Code Rules, 2016 and the
appeal prescribed therein is only against the
grant of such lease and it is to be filed
within 30 days from the date of approval of
such lease by the Sub Divisional Officer.
Any order passed in appeal under Rule 59
is subject to the revisional powers under
Section 210. There is no mention of any
appeal against an order of cancellation of
lease under Rule 57 (14) of the Rules,
2016. The use of the words "person
aggrieved thereby" in Rule 59 refers to a
person aggrieved by grant of lease and an
appeal lies against such grant of lease,
which is also evident from the fact that the
period of limitation of 30 days is prescribed
from the date of approval of such lease by
the Sub Divisional Officer, which is not
relevant in the case of cancellation of lease.

6. As an appeal does not lie against
such cancellation as held here-in-above, we
dismiss this petition for the reasons
aforesaid, but with liberty to the petitioner
to avail other remedies prescribed in law.
----------
(2021)07ILR A646
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.07.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Misc. Bench No. 13935 of 2021

Brij Mohan Kushwaha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Akash Dikshit

Counsel for the Respondents:
G.A.

A. Indian Penal Code (45 of 1860) -
Section 493 - Cohabitation caused by a
man deceitfully inducing a belief of lawful
marriage - Ingredients - there must be
averment that the accused deceitfully
made to believe the victim woman that
they have been lawfully married - accused
must induce a woman, who is not lawfully
married to him, to believe that he is
married to her and as a result of the
aforesaid
representation,
the
woman
should believe that she was lawfully
married to him and there should be
cohabitation or sexual intercourse as a
result of the deception - where the woman
fully knew that no ceremony of marriage
took place between then, there is no
question of believing otherwise - mere
promise
to
marry
&
having
sexual
relationship with the victim does not
prove offence u/s 493 I.P.C. (Para
11,12,13)

B. Criminal Law - Criminal Procedure Code,
1973 - Section 198 - Prosecution for
offences against marriage. - Scope - No
Court shall take cognizance of an offence
punishable under Chapter XX of the Indian
Penal Code (which contains S. 493 I. P. C.)
except upon a complaint made by some
person aggrieved by the offence - F.I.R.
cannot be registered for the offence u/s 493
I.P.C. - at the most, if complainant is
aggrieved, she ought to have filed a
complaint under Section 198 Cr.P.C. before
the competent authority (Para 15)

Allowed. (E-4)

List of Cases cited:

1. Moideenkutty Haji & ors. Vs Kunhihoya & ors.
AIR 1987 Kerala 184

(Delivered by Hon'ble Ramesh Sinha, J.)
7 All. Brij Mohan Kushwaha Vs. State of U.P. & Ors.
647

1. The Court has convened through
Video Conferencing.

2. Heard Shri Akash Dikshit, learned
counsel for the petitioner, Shri S.N. Tilhari,
learned AGA for the State-respondent nos.1
and 2 and Shri Anshuman, learned counsel
who has put an appearance for the private
respondent no.3 and perused the impugned
F.I.R. as well as material brought on record.

3. Shri Anshuman, learned counsel is
directed to file his power in the Registry of
the Court today.

4. The instant writ petition has been
filed by the petitioner, Brij Mohan
Kushwaha, seeking to quash the First
Information
Report
dated
17.07.2021
registered as Case Crime No. 193 of 2021,
under Sections 493 IPC, Police Station
Hazratganj, District- Lucknow.

5. Learned Counsel for the petitioner
submits that as per the prosecution case, the
petitioner was in love with the victim
woman/respondent no.3 and with the
promise to marry, the petitioner was living
with victim/woman together with for seven
years in one house but later on, the
petitioner did not marry with her and as
such, she was cheated by the petitioner and
finding no other way, she lodged the
impugned F.I.R. The case was registered
under Section 493 of the Indian Penal
Code.

6. Learned counsel for the petitioner
has further submitted that the offence under
Section 493 IPC is not made out even if the
F.I.R. is gone through because there is
nothing available in the F.I.R. that the
petitioner deceitfully made her to believe
that she has lawfully married to the
petitioner for which one of the ingredients
of the offence under Section 493 IPC is not
made out. He further submitted that though
Section 493 I.P.C. is a cognizable offence
but the complainant ought to have filed a
complaint under Section 198 Cr.P.C. before
the competent Court as no F.I.R. can be
registered for the offence under Section 493
I.P.C.

7. Learned counsel for the petitioner has
further submitted that the petitioner and victim
woman/respondent no.3 have entered into a
written compromise dated 22.06.2021, a copy
of which has been annexed as Annexure No.2
to the writ petition, wherein it has been stated
that the parties have settled their dispute
through mediation and now there is no dispute
between them as all the disputes have been
settled amicably through their mutual consent.
In these backdrops, his submission is that the
impugned F.I.R. be quashed.

8. Shri Anshuman, learned counsel for
the private respondent No.3 could not dispute
the aforesaid fact of compromise being entered
into between the petitioner and respondent
no.3/complainant.

9. Learned AGA, on the other hand, has
argued that on the written complaint of the
complainant/victim woman, the impugned
F.I.R. was lodged on 17.07.2021, under
Section 493 I.P.C. against the petitioner, but he
does not dispute the provision of Section 198
Cr.P.C., which provides the complaint is to be
filed for the offences mentioned under Chapter
XX of I.P.C. and offence under Section 493
I.P.C. is barred in the aforesaid Chapter.

10. Having heard the submissions
advanced by the learned Counsel for the
648 INDIAN LAW REPORTS ALLAHABAD SERIES
parties and gone through the record, we
deem it appropriate to reproduce Section
493 I.P.C., which is 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."

11. From perusal of the aforesaid
Section 493 I.P.C., it transpires that in order
to establish that a person has committed an
offence under the said Section, it must be
established that a person had deceitfully
induced a belief to a woman, who is not
lawfully married to him, that she is a
lawfully married wife of that person and
thereupon she should cohabit or should
have had sexual intercourse with that
person. Thus it is clear that the accused
must induce a woman, who is not lawfully
married to him, to believe that he is married
to her and as a result of the aforesaid
representation, the woman should believe
that she was lawfully married to him and
there should be cohabitation or sexual
intercourse as a result of the deception.

12. The Full Bench of Kerala High
Court in Moideenkutty Haji and others v.
Kunhihoya and others : AIR 1987 Kerala
184 have observed as follows:

" xx x x The essence of the section
is therefore the deception caused by a man
on a woman in consequence of which she is
led to believe that she is lawfully married
to him while in fact they are not lawfully
married. In order to establish deception
there must first be allegations that the
accused falsely induced her to believe that
she is legally wedded to him. In the
complaint in this case there is no allegation
of any such deception of inducement. In a
case where both the man and woman fully
knew that they are not husband and wife
and no ceremony of marriage took place
between then, there is no question of one of
them believing otherwise. Even if the entire
allegations in the complaint are taken as
true, the section is not being attracted. The
allegation is that though they are not
husband and wife, they had sexual union
during late hours in the night for a pretty
long time. What is alleged in the complaint
is only a promise to marry in future. The
strange part of it is, there is the further
allegation that one day they went for
registering the marriage, but the petitioner
ran away from there and even thereafter
she was submitting herself to him regularly
for liaison. The facts cannot at any rate
attract Section 493, IPC."

13. Thus, it appears that in order to
prove the offence under Section 493 IPC,
there must be averment that the accused
deceitfully made to believe the victim
woman that they have been lawfully
married. In the instant case, the petitioner
has
not
married
to
the
respondent
No.3/complainant. If such ingredient is not
proved, mere sexual relationship with the
petitioner does not prove any offence under
Section 493 I.P.C.

14. From perusal of the impugned
F.I.R., it transpires that nothing is revealed
except the petitioner promising to marry
with the complainant/respondent no.3 and
this is not sufficient to prove the
ingredients of the offence under Section
493 IPC. Hence, the ingredients of the
offence under Section 493 I.P.C. is not
7 All. Balaji Catters & Party, Hardoi Vs. State of U.P. & Ors.
649
made out in the F.I.R., which is impugned
in the instant writ petition.

15. For the aforesaid reasons and also
considering the fact that the parties have
entered into compromise vide compromise
dated 22.06.2021 (Annexure No. 2), we
find substance in the submission of the
learned Counsel for the petitioner that
F.I.R. cannot be registered for the offence
under Section 493 I.P.C. as at the most, if
the
respondent
no.3/complainant
is
aggrieved, she ought to have filed a
complaint under Section 198 Cr.P.C. before
the competent authority. Even otherwise,
we are of the opinion that impugned FIR is
not sustainable and the same is liable to be
quashed as in the impugned F.I.R., there is
no
ingredients,
which
attracts
the
provisions of Section 493 I.P.C., hence the
same is liable to be quashed.

16. Accordingly, we allow the instant
writ petition and quash the impugned F.I.R.
dated 17.07.2020 contained in Annexure
no.1 to the writ petition.

17. The party shall file computer
generated copy of order downloaded from
the
official
website
of
High
Court
Allahabad, self attested by it alongwith a
self attested identity proof of the said
person(s)
(preferably
Aadhar
Card)
mentioning the mobile number(s) to which
the said Aadhar Card is linked, before the
concerned Court/Authority/Official.

18.

The
concerned
Court/Authority/Official shall verify the
authenticity of the computerized copy of
the order from the official website of High
Court Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2021)07ILR A649
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.07.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE RAVI NATH TILHARI, J.

Misc. Bench No. 14587 of 2021

Balaji Catters & Party, Hardoi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ram Ji Trivedi

Counsel for the Respondents:
C.S.C.

Constitution
of
India
-
Art.226
-
Contractual
matters
-
Writ
petition
maintainability
-
in
the
matters
of
contract where the
petitioner seeks
enforcement of obligation on the part of
the State to pay the bills
amount
admitted by the State, the writ petition is
maintainable - but where petitioner claim
requires adjudication by making enquiry
into facts and on evidence, then the writ
petition is not the proper remedy (Para 8,
9)

Petitioner, engaged in catering work - he did
catering work & submitted bills for payment
however, payment not made - Held - petitioner
has not been able to demonstrate that it is a
case of admitted liability of the amount under
the bills submitted before the opposite parties -
Merely because of the initials of the accountant
on some bills it cannot be a case for admitted
liability (Para 6)

Dismissed. (E-4)

List of Cases cited :