Consensual intimacy cannot be called rape after relationship breaks down: Supreme Court

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The Supreme Court has cautioned against the growing tendency to initiate criminal proceedings following failed relationships, observing that sexual intimacy during a consensual relationship cannot subsequently be treated as rape merely because the relationship has ended.

A bench of Justices BV Nagarathna and R Mahadevan made the observations while discharging a Kerala resident, Santosh Kumar NP, from charges of rape and cheating. The court emphasised the need to distinguish between sexual consent secured through deliberate deception from the beginning and situations where a person develops regret over consensual intimacy after a relationship falls apart.

“In such cases, physical intimacy that occurred during the currency of a functioning relationship cannot be retrospectively branded as an act of rape merely because the relationship soured and no longer subsists,” the bench observed.

The Supreme Court said that retrospective reconsideration of consensual sexual relations, solely because a relationship did not work out, could not by itself justify criminal prosecution. It cautioned against setting the criminal justice machinery in motion in circumstances that could deprive an accused of personal liberty and damage his reputation.

The bench also highlighted the importance of recognising that individuals retain the freedom to discontinue relationships. It questioned whether a man's decision to walk away from a consensual relationship could automatically be interpreted as deception or fraud.

“In such a scenario, can it be said that the man has no right to withdraw from the relationship? Can the decision be termed as deceit or fraud? Clearly not,” the court said.

It further observed that treating a person as permanently bound to a relationship because of earlier consensual intimacy would effectively deny him the agency to make an independent decision about continuing it.

The court noted that it had repeatedly encountered instances in which the breakdown of personal relationships was followed by criminal complaints. It warned that rape, being a grave criminal offence, must be invoked in circumstances involving actual sexual violence, coercion or manipulation of consent.

“When every consensual relationship which sours is converted into an accusation of rape it dilutes the gravity of the offence alleged or rather negates the very allegation of crime,” the bench said.

However, the Supreme Court distinguished such situations from cases in which consent is legally invalid from the outset because it was secured through fraud or deliberate misrepresentation. It said that the two categories must not be treated alike while examining allegations of rape arising from intimate relationships.

The observations came in an appeal filed by Santosh Kumar NP, who challenged the Kerala High Court's decision to reject his discharge application and his plea seeking the quashing of criminal proceedings against him.

According to the prosecution, the complainant alleged that the accused had concealed the existence of his earlier marriage before marrying her. His first marriage was allegedly still subsisting when he entered into the second marriage with the woman.

The complainant, who had been divorced from a previous marriage, alleged that the accused induced her to believe that their marriage was legally valid. She claimed that he had sexual relations with her on the basis of consent obtained through what the prosecution described as an unlawful marriage brought about by deception.

The woman further accused him of cohabiting with her by concealing his existing marital status, and alleged offences of rape, cheating and criminal breach of trust.

As per the prosecution's account, the two got married in Mysore and lived together between 1996 and 2003. The allegation was that the accused had misrepresented his marital circumstances, thereby securing her consent to the marriage and subsequent physical relationship.