Consensual sex not rape if live-in partner fails to marry, says SC

Source: Reuters

In a landmark judgement, the Supreme Court has said that a consensual physical relationship between two live-in partners does not amount to rape if the man fails to marry his partner “due to circumstances beyond his control.”

The apex court ruling came as it invalidated a case registered by a nurse based in Maharashtra against a doctor, who was in a live-in relationship with the nurse “for quite some time”.

The bench comprising Justices AK Sikri and S Abdul Nazeer stated that there is a clear divergence between rape and consensual sex and in cases such as this, the court of law must examine very carefully whether the accused had actually wanted to marry the victim or in bad faith, had made a “false promise to satisfy his lust, as the latter falls within the ambit of cheating or deception.”

“If the accused has not made the promise with the sole intention to seduce the woman to indulge in sexual acts, such an act would not amount to rape,” the bench further said.

“There may be a case where the prosecutrix (woman) agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently,” the bench said.

It added that if the man had any intent to deceive or any clandestine motives, then the case was clearly of rape.

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The consensual physical relationship between both parties if acknowledged would not amount to an offence under section 376 (rape) of the IPC, the bench noted.

With reference to the facts of the case, the court said the two parties had been living together “for quite some time” and when the woman had come to know that the man had married someone else, she registered the complaint.

The bench shared its view that even if the accusations made by the complainant were “taken at their face value and accepted in their entirety”, the allegations cannot make a case against the defendant.

The appellant, a doctor by profession, had appealed at the top court against the judgement of the Bombay High Court which had earlier quashed his plea seeking dismissal of the FIR which was lodged against him.