Supreme Court: consensual intimacy cannot be called rape just because a relationship ended

The Supreme Court on Friday, October 30, said that physical intimacy between two adults in a consensual relationship cannot later be treated as rape only because the relationship has broken down, and discharged a man from Kerala of charges of rape and cheating.

A bench of Justices B V Nagarathna and R Mahadevan said consensual intimacy during a relationship "cannot be retrospectively branded as an act of rape merely because the relationship soured", according to reports by news agencies PTI and ANI. The court described what it called a disturbing trend of failed relationships being turned into criminal cases.

The case

The complaint was filed by a divorced woman who said she had lived with the man from 1996 to 2003 after a marriage ceremony in Mysuru, PTI reported. She alleged that he had hidden an earlier marriage that was still in force, that her consent had been obtained through a marriage secured by fraud, and accused him of rape, cheating and breach of trust.

The man asked to be discharged and for the proceedings to be quashed. The Kerala High Court refused both requests, and he appealed to the Supreme Court.

What the court said

The bench said a distinction had to be drawn between consent that is void from the start because it was obtained by deliberate deception, and what it described as retrospective regret over consensual acts after a relationship ends, PTI reported. The offence of rape, it said, should be kept for cases of real sexual violence, coercion or manipulation of consent.

If every relationship that turns sour were treated as rape, the court said, a man would be bound to a relationship for fear of being accused later. Treating such cases as rape "dilutes the gravity of the offence", the bench added, according to PTI.

The reports do not set out in detail how the court assessed the complainant's specific allegation about the earlier marriage. Reports say the man was discharged of rape and cheating; they do not say what happens to the remaining allegation of breach of trust.

Background

Indian courts have repeatedly been asked to decide when a promise of marriage, or a relationship that later ends, can make consent invalid in law. The Supreme Court has in several earlier rulings separated cases where a promise was false from the outset, which can vitiate consent, from cases where a genuine relationship simply did not last. Friday's ruling adds to that line of decisions. It applies to the facts of this case, but lower courts hearing applications to discharge accused persons or quash similar cases are likely to be asked to consider it.