Can ‘Consensual’ Relationship Be Treated As ‘De Facto Marriage’ In View Of Long Cohabitation Between Rape Accused And Victim? SC to Examine [Read Order]

‘This interpretation may have to be considered so that a girl is not subjected to any exploitation and is not rendered remediless even if a criminal offence is not made out.’

The Supreme Court is set to consider an important issue arising in some rape cases like whether, on account of long cohabitation, even if the sexual relationship is held to be consensual and the accused is not held liable for the offence alleged, whether he can be fastened the civil liability treating the relationship to be ‘de facto marriage’ in view of long cohabitation.

A bench of Justice Adarsh Kumar Goel and Justice S  Abdul Nazeer, while considering a special leave petition filed against a Karnataka High Court judgment, observed that such an interpretation of ‘de facto marriage’ may have to be considered so that a girl is not subjected to any exploitation and is not rendered remediless even if a criminal offence is not made out.

The high court, in this case, had dismissed the petition filed by the accused seeking to quash criminal proceedings against him. His contention was that the girl knowing fully-well about the consequences involved in sexual activities and there was no question of the accused persuading her on the guise of marrying her and to have sexual intercourse.

The high court dismissed the plea holding that whether the said lady has surrendered herself to the lust of the accused or not, or only on the misconception of fact of marriage or any act done to any other thing, it all depends upon her mental capacity, thinking capacity, surrounding circumstances etc., which have to be considered by the trial court.

The apex court bench observed that, in the criminal case filed by the victim girl’s father, he had stated that the accused and the girl lived together for six years. The court stayed the further proceedings tagging the case with a connected SLP, which is also against an order of Karnataka High Court.

The bench observed: “During the course of hearing, one of the question which has been taken up for consideration whether, on account of long cohabitation, even if the relationship is held to be consensual and the petitioner is not held liable for the offence alleged, the petitioner can be fastened the civil liability treating the relationship to be de facto marriage in view of long cohabitation. This interpretation may have to be considered so that a girl is not subjected to any exploitation and is not rendered remediless even if a criminal offence is not made out. Somewhat identical issue has been subject matter of consideration in several decisions, including Vidhyadhari versus Sukhrana Bai1; Pyla Mutyalamma Alias Satyavathi versus Pyla Suri Demudu; Chanmuniya versus Virendra Kumar Singh Kushwaha and Badshah versus Urmila Badshah Godse.”

Senior Advocate Abhishek Manu Singhvi was appointed as amicus curiae in the matter and assistance of Additional Solicitor General was sought. The court posted the matter for further consideration on 12^th September.

Recently, while quashing a ‘rape on promise of marriage’ case, the Supreme Court bench headed by Justice SA Bobde had observed that it is difficult to hold sexual intercourse in the course of a relationship which continued for eight years as ‘rape’.