Supreme Court considering the question ‘Can a failed consensual affair amount to rape’?

Supreme Court bench comprising of Justice Vikramjit Sen and Justice S.K. Singh yesterday expressed anxiety over the growing number of cases where the women in failed relationships had filed rape charges against the men, accusing them of inducing them into a sexual relationship on the promise of marriage.

It was contended by the complainant that the man had sexually abused her on the promise of marriage and also threatened to circulate an indecent video of her. The case was concerned with a relationship between a top IDFC banker and a former cabin crew member with an international airline. They both had a consensual live-in relationship for three years since 2009, while his divorce petition with his wife remained pending.

The accused in the present case contended that the woman was highly educated and knew all along that he was a married man with two children. He asserted that it was impossible for him to have induced sexual relationship on false promises of marriage.

Senior advocate Sidharth Luthra, appearing for the accused, reportedly contended, "People get carried away in such relationships. They had a peculiar relationship”, asserting that "breach of promise to marry" was not an ingredient for rape charges. Luthra raised questions: “Can moral transgressions like an extra-marital affair be equated to rape when the woman enters into the relationship with open eyes? Can breach of promise invite charge of rape?”

The bench stated, "It is not cupid but stupid…" and warned couples from clicking pictures and making videos of their intimate moments. According to reports, the Bench observed, “Why do you have to take pictures, make videos even if you are consenting adults? It is not normal… not right. Such things create problems”.

Eight status reports were filed by the Police. Investigating officer had also been changed on one occasion, on the behest of the woman. The accused had handed over all articles including cameras, laptops and phone SIM cards as demanded by police, and joined the investigation 21 times, as a proof of his co-operation with the authorities during investigation. Hence, it was contended that arresting him wouldn’t serve any purpose.

The Court fixed the matter after two weeks for consideration of issues involving the case.

The apex court in the case of Uday v State of Karnataka in 2003 considered the interpretation of consent and its application to such cases in detail.

The trial court as well as the High Court had concurrently held that though the prosecutrix had consented to sexual intercourse with the appellant, the consent was obtained by fraud and deception inasmuch as the appellant induced her to consent on the promise that he shall marry her.

While considering the question of consent, the Bench comprising of Justice N. Santosh Hegde and Justice B.P. Singh stated: “It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code,” adding that in the absence of a strait jacket formula for the same, each case should be decided on the basis of existing circumstances.

Acquitting the accused, the court observed that, “It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are over come with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship.” 

Again in 2013, Deepak Gulati vs State Of Haryana, Supreme Court Bench, comprising of Justice B.S. Chauhan and Justice Dipak Misra, relied on the judgment in Uday v State of Karnataka and while giving the accused a benefit of doubt, observed: “Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact.”

Hence, the judicial opinion regarding such cases has been profound; however, the circumstances in each case have to be analyzed separately, in order to arrive at a conclusion.