Consensual Physical Relationship not Rape- Supreme Outlines Difference between Rape and Consensual Sex

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January 04, 2019

In a noteworthy judgment while outlining distinction between rape and consensual sex held that acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.

The present appeal assails Bombay High Court’s judgment, whereby the High Court dismissed the application filed by the appellant to quash complaint registered against him for offence of rape under Section 376 (2)(b) of the Indian Penal Code.

The complainant specifically stated that she had fallen in love with the appellant and that she needed a companion. The complainant also alleged that they were living together, sometimes at her house and sometimes at the residence of the appellant. Admittedly, the complainant registered against appellant for offence of rape when the appellant married some other women.

Bench’s Verdict

The Supreme Court in view of the facts and circumstances of the case, allowed the appeal and quashed the complaint for rape. While pronouncing it’s verdict, the Apex Court made the following observations in the case:

The Supreme Court in the case while referring to it’s verdict in the case of Deepak Gulati v. State of Haryana[1], noted that there is a distinction between rape and consensual sex and the Court in such cases, must very carefully examine 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, as the later falls within the ambit of cheating or deception.

The Apex Court further held that 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. It was stated by the Court that 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 then such cases must be treated differently.

Thus, the Court was of the view that if the complainant had any mala fide 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 entire case can be accessed here.

[1] (2013) 7 SCC 675