The Gujarat High Court has observed that when two adults live together under a mutually consented written agreement and thereafter end their arrangement also via a written agreement then the complainant's claim of rape on false promise of marriage becomes difficult to sustain. [2026 LiveLaw (Guj) 288]

The court said that the long drawn relationship of the appellant with the respondent, including the circumstances of their living together and cohabiting with each other, that too in separate rented accommodation with the knowledge of the parents of the prosecutrix, would give rise to a presumption that their relationship was based on valid consent

In doing so the court upheld a trial court order acquitting a man accused of rape by his former live-in partner. 

A division bench of Justice Ilesh J Vora and Justice RT Vachhani in its order said:

"When two adults, after living together for several months under a written arrangement that itself declared free consent, mutually put an end to that arrangement by a further written instrument that again affirms the absence of coercion, the prosecution case that the relationship was throughout the product of a false promise of marriage and of repeated force becomes difficult to sustain. The cancellation deed though not required to be executed compulsorily in law, therefore lends direct support to the finding that the physical relationship, such as it was, rested on the continuing consent of the prosecutrix and that the separation was voluntary". 

It also noted that at the time of executing the first written agreement the respondent was not of marriageable age as he was 20 years old. It noted that this agreement remained in operation until it came to be cancelled by the subsequent deed when the relationship ended.

"It is thus admitted that during the intervening period the parties, and the appellant (complainant) herein in particular, resided with the respondent of her own consent and volition, and without any force or coercion applied by any person, including the respondent herein. Further, even otherwise, an agreement of this nature is opposed to public policy.

Even if it is considered that at the time of executing the deed of understanding the respondent was 20 years of age, and 21 years in continuity thereof, he cannot be said to have entered into an agreement enforceable in law. The very purpose of the agreement was that, on attaining the marriageable age, the respondent would marry the appellant herein. The probative value of such a document, with regard to contracting a marriage by a person who was not competent to contract it by reason of the debarment of age, is nil," the court said.

It said that such a document can't be termed a legal one, and it is otherwise against public policy and against the law and it cannot be used in the manner alleged by the complainant.

"The present case is not one of a promise to marry made with a dishonest intention from the very inception, so as to obtain sexual favours under the guise of such a promise. Here, the parties entered into a written agreement by mutual consent to live together, and thereafter, by another deed, mutually cancelled it. The prosecutrix, being a major, resided with the respondent of her own consent, and the case therefore cannot be brought within the ambit of rape on the premise of a false promise of marriage," the court said. 

The high court referred to deed of understanding between complainant and respondent and noted that at the time of executing the deed, the respondent was 20 years of age and was thus not of marriageable age. The couple had decided to live together on their own volition, without any coercion or pressure on the part of any third person, the court said.

The court said that the woman and declared in the agreement that she would reside in the company and under the shelter of the party of the first part (i.e. the respondent) so long as it was her wish and she had trust in him.

"She further declared that no allurement or inducement had been held out to her to live with the party of the first part, and that she had executed the deed of her own free will, willingly and voluntarily. It was further stipulated that they would take decisions regarding their life by their own free will, and that on the party of the first part attaining the age of majority, namely 21 years, they would marry each other of their own will and consent, and the parties gave an undertaking to that effect," it noted.

Subsequently, on 29.01.2020, a further deed of understanding was executed between the parties which said that the parties were then pursuing their studies and that, of their own free will and without any harassment or threat, they had decided to live separately.

"This contemporaneous document, executed at the very end of the period alleged in the charge, contains no recital of any beating, any threat to die, or any forcible intercourse, and is wholly consistent with the admissions of the prosecutrix's father and uncle that she had gone and stayed with the accused of her own will and that the agreement stood cancelled," the court said.

The court also observed that if two able-minded adults reside together as a live-in couple for a considerable period and cohabit with each other, a presumption would arise that they voluntarily chose that kind of relationship being fully aware and conversant of its consequences.

"Therefore, the allegations raised by the appellant herein that such relationship was entered because there was a promise of marriage by the contesting respondent is, in the circumstances, not worthy of acceptance, particularly when there is no allegation at all that such relationship would not have been established had there been no promise to marry, and particularly when, at the time of executing such deed of live-in, the respondent was not of the marriageable age...

in a case like a long drawn live-in relationship, occasion may arise where the parties in that relationship express their desire or wish to formalize the same by seal of marriage, but that expression of desire or wish by itself would not be indicative of the relationship being a consequence of that expression of desire or wish. Nowadays, it is common that women are financially independent and have the capacity to take conscious decisions of charting their life on their own terms, including the financial freedom which has led to proliferation of such live-in relationships. And simply because the difference and dispute between the parties arise on any count, the same cannot be given colour of a criminal prosecution," the court added.

The court said that in such cases it must not adopt a pedantic approach rather the Court will, based on the length of such relationship and particularly the conduct of the parties, "presume implied consent of the parties" to be in such a relationship regardless of their desire or wish to convert it into a marital bond.

The woman's appeal was dismissed.