SC: Consensual sex between live-in partners is not rape if the man fails to marry woman

09 Jan 2019

SC: Consensual sex between live-in partners is not rape if the man fails to marry woman


The Supreme Court, while recently hearing an almost two-decade-old complaint, held that a consensual physical relationship between two live-in partners does not amount to rape if the man fails to marry his partner “due to circumstances beyond his control”.

The brief facts of the case DR. DHRUVARAM MURLIDHAR SONAR VS THE STATE OF MAHARASHTRA & ORS. are as under:

The named accused/appellant Dr. Sonar, was serving as a medical officer, Primary Health Centre at Toranmal, (Nandurbar District). The complainant (widow woman) was working as an Assistant Nurse at the same establishment. The complainant’s husband passed away in 1997. During this time, the appellant informed her that there were differences between him and his wife, and therefore, he is planning to divorce his wife. Further, the appellant informed the complainant that since they belong to different communities, a month is needed for the registration of their marriage.

Therefore,she started living with the appellant at his Government quarters. The FIR further stated that she had fallen in love with the appellant and that she needed a companion as she is a widow. Therefore, they started living together,as if they were husband and wife. They resided some time at her house and sometime at the house of the appellant. The appellant acted as if he has married her and maintained a physical relationship with her. However, he failed to marry her as promised.

When things stood thus, Dr. Sonar’s brother, i.e. accused No. 2, claims to have married her. Thereafter, in the year 2000, complainant received the information from the co-accused (Dr. Sonar’s brother) about the marriage of the appellant with some other woman. The woman (complainant) filed a police complaint in December 2000. An FIR was registered under Sections 376(2)(b) (punishment for rape committed by a public servant taking advantage of a woman in his custody or subordinate to him), 420 (Cheating and dishonestly inducing delivery of property) read with Section 34 (acts done by several persons in furtherance of common intention) of the IPC and under Section 3(1)(x) of the SC/ST Act.

After an investigating agency submitted its report in the case in June 2001, the accused moved the Bombay High Court to quash the FIR and charge sheet against him under section 482 of the Cr.P.C. The HC refused the same in July 2018, prompting him to approach the Apex Court.

The Court in its judgment proceeded to explain the scope of “consent” under Section 375. “Consent” is also stated to be an act of reason coupled with deliberation.It denotes an active will in mind of a person to permit the doing of the act complained of, the Bench observed.

The Court thereafter proceeded to address the question of consensual sex and rape in the context of “promise to marry”.

In the instant case, the bench comprising Justices A.K. Sikri and S. Abdul Nazeer,while putting emphasis on Deepak Gulativ. State of Haryana,(2013) 7 SCC 675 and Shivashankar @Shiva v. State of Karnataka  & Anr. (disposed of on 6th April, 2018), observed that, “there is a clear distinction between rape and consensual sex. The Court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had malafide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception.”

However,if the accused had any malafide intention and if he had clandestine 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 ruled.

The Court emphasised on the distinction between a “breach of promise” and a “false promise”.  “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 further held.

In conclusion, the Court ruled, “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. We are also of the view that since complainant has failed to prima facie show the commission of rape, the complaint registered under Section376(2)(b) cannot be sustained.”.

The Apex Court, while rendering another such landmark judgement, allowed the appeal, set aside the decision of the Bombay High Court and also quashed the alleged FIR and charge sheet.


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