SC raises alarm over criminalizing prolonged consensual relationships upon break-up

The Supreme Court on Nov 26 held that a prolonged physical relationship between couples without protest or insistence on marriage by the female partner is indicative of a consensual relationship rather than one founded on a false promise of marriage.

A bench of Justices — BV Nagarathna and Justice N Kotiswar Singh — also emphasized the "worrying trend" of attributing criminality to the male partner after a consensual sexual relationship turns sour later.

"It is evident from the large number of cases decided by this Court dealing with similar matters as discussed above that there is a worrying trend that consensual relationships going on for prolonged periods, upon turning sour, have been sought to be criminalized by invoking criminal jurisprudence," the bench noted.

The Court sought to distinguish between consensual relationships and those based on false promises of marriage.

The Court observed that a female partner may have reasons to have a physical relationship with a man other than the promise of marriage, such as a personal liking for the other partner without insisting upon formal marital ties.

The longer such a relationship, the greater is the indication that it is a consensual relationship without any promise of marriage.

"In a situation where physical relationship is maintained for a prolonged period knowingly by the woman, it cannot be said with certainty that the said physical relationship was purely because of the alleged promise made by the appellant to marry her.” the Court observed.

“In our opinion, the longer the duration of the physical relationship between the partners without protest and insistence by the female partner for marriage would be indicative of a consensual relationship rather than a relationship based on the false promise of marriage by the male partner and thus, based on a misconception of fact," it added.

The Court also clarified that such a prolonged continuation of the physical relationship without demurral or remonstration by the female partner, in effect takes out the sting of criminal culpability and neutralizes it.

The case came up in 2012 when the accused, who is said to have been a social worker since 1985, helped the complainant resolve the issue of the kidnapping of her elder daughter.

Thereafter, the complainant regularly visited the office of the accused and helped him with his work and the accused also extended financial help to her.

However, as per the accused, when requests for financial help began to be more frequent on the part of the complainant, the accused ignored her.

This led to the complainant threatening him and his family members. Despite complaints being registered by him and his family members against the complainant, she lodged a case of rape, cheating, and criminal intimidation under Sections 376, 420, 506 of the Indian Penal Code (IPC).

It was the case of the complainant that she met the accused in 2008 when she was looking for a job and the accused was also in need of a helper to look after his ailing wife.

It was her case that the accused routinely had forced sexual intercourse with her on false promise of marriage.

She alleged that the accused, who already had two wives, promised he would marry her since both his wives were not keeping well.

According to the complainant, this went on till 2017 after which the accused started avoiding her and ended the relationship with her by informing her to do whatever she wanted and to forget about the promise of marriage.

The sessions court granted anticipatory bail to the accused. However, another case was registered against him by the complainant for molesting her daughter. The accused was also protected in the second case too.

He then moved the Bombay High Court to quash the cases registered against him.

The High Court dismissed his plea, noting that there was no prima facie evidence that his relationship with the complainant was consensual.

This led to the appeal before the Supreme Court.

The top Court noted that the fact that the two remained unmarried from 2008 till 2017 without there being any protest or objection by the complainant, indicated that there was an intention on the part of the accused to marry the complainant.

"Making an allegation of non-fulfillment of promise to marry without undue delay by the promissee would, on the other hand, be an indicator of a false promise being made from the initial stage.” the Court observed.

“In the present case, what is not in dispute is that the physical relationship between the appellant and the complainant continued for a long period of about a decade, and as such it is difficult to infer that the appellant had made a false promise since the initial stage and continued to make false promises to marry her based on which she also continued to have physical relationship with him," it said.

The Court viewed that the relationship between the two was more of an extra-marital affair during the period without any insistence by the complainant to get married.

"It appears that discontinuance of financial support to the complainant, rather than the alleged resiling from the promise to marry by the appellant appears to be the triggering point for making the allegation by the complainant after a long consensual relationship for about nine years," the Court observed while quashing the case against the accused.