A Bench of Justice BV Nagarathna and Justice N Kotiswar Singh flagged the “worrying trend” of attributing criminality to the male partner after a consensual sexual relationship turns sour later.
On Tuesday, the Supreme Court held that a long-term physical relationship between partners, where the woman neither objected nor insisted on marriage, signifies consent rather than being based on a false promise of marriage [Mahesh Damu Khare v. State of Maharashtra and Another]. A bench comprising Justice BV Nagarathna and Justice N Kotiswar Singh also raised concerns about the “alarming trend” of attributing criminal liability to the male partner when a consensual sexual relationship later falls apart.
“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 period, upon turning sour, have been sought to be criminalised by invoking criminal jurisprudence,” the Court noted.
The Court emphasized the need to differentiate between consensual relationships and those stemming from false promises of marriage. It observed that a woman may choose to enter a physical relationship with a man for reasons such as personal affection or mutual compatibility, without necessarily expecting marriage. The longer such a relationship lasts, the stronger the indication that it is consensual and not predicated on 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. 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 false promise of marriage by the male partner and thus, based on misconception of fact,” the Court observed.
The Court further explained that the prolonged continuation of a physical relationship, without objection or protest from the woman, removes any grounds for criminal liability, making the matter neutral. The case dates back to 2012, involving the accused, a social worker active since 1985, who assisted the complainant in resolving her elder daughter’s kidnapping. Subsequently, the complainant frequently visited the accused’s office to help with his work, and the accused provided her with financial support. However, the accused claimed he began distancing himself when the complainant’s financial demands grew increasingly frequent.
In retaliation, the complainant allegedly began threatening the accused and his family members. Although the accused and his family lodged complaints against her, she subsequently filed a case accusing him of rape, cheating, and criminal intimidation under Sections 376, 420, and 506 of the Indian Penal Code (IPC). According to the complainant, she first met the accused in 2008 while seeking employment, during which he also needed assistance in caring for his ailing wife. She alleged that the accused repeatedly engaged in non-consensual sexual acts with her under the false pretense of marriage.
The complainant claimed that the accused, already married to two women, promised to marry her, citing the poor health of both his wives. She alleged that this arrangement continued until 2017, when the accused began to distance himself and eventually ended the relationship, dismissing any promise of marriage and telling her to act as she pleased. The sessions court granted the accused anticipatory bail. Subsequently, the complainant filed another FIR accusing him of molesting her daughter, for which he was also granted protection. The accused later approached the Bombay High Court, seeking to have both cases against him dismissed.
The High Court rejected his plea, stating that there was no prima facie evidence to suggest that his relationship with the complainant was consensual. Consequently, the accused appealed the decision to the Supreme Court. The Supreme Court observed that the absence of any objection or protest from the complainant during their unmarried relationship from 2008 to 2017 indicated that the accused had no intention of marrying her.
“Making an allegation of non-fulfilment 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. 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 on the basis of which she also continued to have physical relationship with him,” the Court observed.
The Court observed that the relationship between the two during this period seemed to be an extramarital affair, with no indications that the complainant had insisted on marriage.
“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 allowing quashing of case against the accused.
