The Supreme Court has held that the legislature never intended for consensual sexual acts between adults occurring during a mutually affectionate relationship to be retrospectively criminalised merely because the relationship came to an end.

The observation came while the Court discharged a man from charges in a rape case alleging sexual relations on a false promise to marry. The bench comprising Justice BV Nagarathna and Justice R Mahadevan flagged a “disturbing trend in recent years” in which consensual relationships that have ended are retrospectively examined to identify what can post facto be construed as violence and sexual assault.

The Court drew a clear distinction between situations where an absence of consent built entirely on a “mirage of deceit and falsehood at the outset,” and “experience of regret for having consented to past sexual acts owing to the later demise of the relationship." The latter, while unfortunate, “cannot constitute a consensual relationship as a crime” or set the criminal justice system in motion in a manner that deprives the accused of liberty and reputation.

Such an approach, the Court said, “denudes the man of any agency entirely,” as the mere fact of having been in a consensual relationship at one point would bind him indefinitely to a relationship for fear of a later rape accusation.

“Such an approach denudes the man of any agency entirely as the mere factor of being in a consensual relationship at one point would bind him to it entirely for fear of being accused of rape at a subsequent point of time. In such a scenario can it be said that the man has no right to withdraw from the relationship? Can the decision be termed as deceit or fraud? Clearly not,” the Court said.

The Court also observed that the trend is worrying for the court's, as the man bears a huge monetary burden in settling such cases. "The legislature has never intended that consensual sexual acts between adults occurring during a mutually affectionate relationship, to be retrospectively criminalised merely because the relationship came to an end. It is unfortunate that despite judicial deprecation, this trend is increasing, and it is a matter of concern for the courts as often settlement of disputes comes with huge monetary considerations to be borne by the male accused."

Physical intimacy during the currency of a functioning relationship “cannot be retrospectively branded as [an] act of rape merely because the relationship soured and no longer subsists.”

The Court noted that it has repeatedly witnessed the trend of failed relationships being converted into criminal cases. “Rape being a heinous offence must be reserved for situations where there is real sexual violence, coercion or manipulation of consent.” Converting every soured consensual relationship into an accusation of rape “dilutes the gravity of the offence alleged or rather negates the very allegation of crime.”

At the same time, the Court underscored that rape “strikes at the core of a woman's bodily autonomy and dignity.” It acknowledged that rape offences remains heavily under-reported, with victims often choosing silence to protect their own and their families' honour and reputation. Genuine cases, therefore, “must be pursued with vigour where facts clearly show sexual assault and violence.” At the same time, the justice system must not be abused, to harass a person merely for ending a consensual relationship.

"Rape is an offence that strikes at the core of a woman's bodily autonomy and dignity. It continues to be heavily underreported and victims are encouraged to choose silence so as to protect their and their family's honour and reputation over seeking justice. For every case where the provisions related to rape are misused, there are several cases that never see the light of day. We must emphasise that genuine cases must be pursued with vigour where the facts clearly show sexual assault and violence. But equally, the justice system must not be turned into a tool of vengeance when relationships fail", the Court said.

The Case

The case arose from a complaint filed by a woman who alleged that the appellant had concealed his existing marriage and represented himself to be a bachelor before offering to marry her. The woman, who was earlier married and had obtained a divorce, claimed that the two married at a temple in Mysuru in 1996 and subsequently lived together as husband and wife until 2003. She alleged that she had consented to sexual relations with him on the belief that they were legally married. After their relationship ended, she initiated proceedings under the Protection of Women from Domestic Violence Act in 2008, during which the appellant disclosed before the Magistrate that he was already married and had two children. She subsequently filed a criminal complaint alleging offences including rape, cheating and bigamy.

However, the Supreme Court noted that the woman had admittedly learnt within six months of the purported marriage that the appellant was already married and had two children, but nevertheless continued to cohabit with him for seven years. The Court held that this conduct undermined her claim that she continued to believe herself to be his legally wedded wife. It further observed that the alleged temple ceremony, the priest's statement and documents relating to IVF treatment and joint bank accounts did not establish the existence of a valid marriage. Finding that the relationship was consensual and that the essential ingredients of the offences under Sections 376, 420, 493, 494 and 495 IPC were not made out, the Court discharged the appellant, holding that a prima facie case against him has not been made out.

"In the facts of the present case, in our view, the materials do not support an inference of rape. The relationship was consensual between two adults. The acts were not forced. The appellant merely decided, for reasons best known to him, to withdraw from the relationship which was claimed to be in the nature of a marital relationship. The repeated sexual acts were part of the ongoing relationship and cannot be severed from it artificially to bring them under Section 376(2)(n)", the Court held.

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