Consensual sex in a live-in relationship does not amount to rape if the man fails to marry: SC

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Dr Dhurvaram Murlidhar Sonar

v.

State of Maharashtra

 

FIR lodged on: 6th December 2000

Judgment date: 22nd November 2018

 

Bench: Justice S Abdul Nazeer and Justice A.K Sikri

The accused/appellant was a medical officer at Primary Health Centre at Toranmal. The complainant was an Assistant Nurse at the same Health Centre. The complainant’s husband passed away in 1997. During this time, the appellant informed the complainant that he is planning to divorce his wife in the view of the fact that there were big differences between him and his wife on certain issues. The appellant and complainant were from different communities and therefore needed some more time for the registration of the marriage.

She started living with the appellant at his Government quarters. During the investigation she agreed that she fell in love with the appellant and also that she needed a companion as she was a widow as a result they started living together, as if they were husband and wife. They resided some time at her house and some time at the house of the appellant. The appellant started acting as if he is married to her and maintained a physical relationship with her. However, he failed to marry her as promised because the appellant married some other women in the year of 2000, as a consequence the nurse (complainant) filed a case under Section 376(2)(b) of the Indian Penal Code that books the person for the offence of rape.

In June 2001, the investigating agency submitted the final report of the investigation. The appellant filed the criminal application under Section 482 before the High Court for quashing the FIR and the charge sheet, but the same was dismissed by the High Court promoting the present appeal.

Justice S Abdul Nazeer made the concept clear and stated that “it must very carefully be examined whether the complainant 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. The latter falls within the ambit of cheating or deception. Further, the Court also sought to make a distinction between a mere breach of a promise and not fulfilling a false promise to marry. 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 bench further added: “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. However, if the accused had any mala fide intention and if he had clandestine (hidden or unlawful) motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.”

The court therefore, quashed the FIR filed against the appellant and also acquitted him of all the charges.

 

Conclusion

In recent days we have been observing that there has been misuse of the laws punishing the offence of rape. In this case also we can easily notice that the woman agreed that she liked appellant and maintained physical relationship with him too therefore attracting consensual sex. And, when the appellant failed to marry, she booked him of committing rape against her regardless of the point that they entered into physical relationship with her free consent. When the appellant entered into physical relation, she didn’t object on the spot that he has raped him, why after when she came to know that the man married another woman. Laws aren’t imperfect, human beings exploit the laws they are awarded. This problem is emerging day by day and because of it, many of times, an innocent person has to go through heavy mental stress and rigorous investigation. Also, his reputation in the society is lowered.

Although rape is a serious and burning issue in today’s India but some fabricated and false cases make slip out of the real cases and causing injustice to the victims. Judiciary , therefore, being a diligent tier of our governing system tries hard to rectify the innocence or culpability of the person accused of the crime.