The Supreme Court has held that rape charge cannot be invoked in case of consensual sex between live-in partners after relationship ends and the man fails to marry her due to circumstances beyond his control.
It said that such cases could be termed as a case of breach of promise to marry rather than a case of false promise to marry.
“There is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape,” the court said.
“The acknowledged consensual physical relationship between the parties would not constitute an offence under section 376 (rape) of the IPC,” the bench said.
A bench of justices AK Sikri and S Abdul Nazeer said that when live-in partners are living together out of love and having consensual sex under the promise of marriage them the woman cannot be allowed to initiate criminal proceedings for rape in case of break down of relationship without tying the knot.
“There may be a case where the prosecutrix 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,” it said.
The bench passed the order while quashing criminal proceedings against a government doctor in Maharashtra against whom a FIR was lodged by a nurse working under him. She alleged in her complaint that she was in a live-in relationship after falling in love with him and indulged in a physical relationship as he promised to marry her. She lodged the case after the doctor married another woman.
“We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant (doctor),” the bench said.
“They were in a relationship with each other for quite some time and enjoyed each other’s company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her case that he has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant,” the bench said.
The doctor had moved the top court after the Bombay High Court rejected his appeal to quash the FIR against him.