On the 31^st of July, the Bombay High Court quashed an FIR lodged in 2018 against a 73-year-old man who was accused of raping a woman on the false promise of marriage. The High Court bench comprising Justice A.S. Adhikari and Justice Neela Gokhale stated that the parties had been in a sexual relation for up to 31 years and that the complainant had never spoken up about her apparent opposition to the relationship.  

The High Court said this while hearing an application under Section 482 of the Criminal Procedure Code of 1973 seeking the quashing of an FIR filed against the 73-year-old applicant Lalchand Sirumal Bhojwani for offences punishable under Sections 376, 420, and 506 of the Indian Penal Code of 1860.

“In the past 31 years, she has willingly and knowingly participated in the relationship with the Applicant,” the court said.

Notably, the complainant woman who worked at the applicant’s company had claimed in 2018 that the applicant had called her to the office on a holiday and raped her. She claimed that the applicant raped her for 30 years on the false promise of marrying her. She further alleged that the accused threatened to defame her if she married someone else. The complainant accused the applicant of deceiving her by making false promises of marriage only to have a sexual relationship with her.

The court, however, observed that the complainant was aware of the applicant’s marriage and still stayed in a relationship with him. Also, the applicant never promised to divorce his first wife to marry the complainant.

“She is adult enough to know that the law forbids a second marriage and there is no allegation in the complaint that, the Applicant promised to divorce his first wife and then marry her. Even otherwise, this would purely be wishful thinking on the part of the complainant that the Applicant will marry her after divorcing his existing wife,” the court said.

The Court noted that she did not take advantage of the options provided to her to leave and report the matter, which supports the Applicant’s claim that the relationship was entirely consensual. The Court stated that it is a classic situation of a deteriorating relationship between the parties, followed by the complainant filing a police case. As a result, the Court ruled that the complainant’s sexual relationship with the applicant was not against her will or without her agreement, and no case of rape or cheating was established. Finally, the court dismissed the FIR and granted the application.

This, however, is not the first case wherein women have filed cases against their partners after their relationship turned sour and passed off consensual sex as rape. Notably, accusing a partner of rape after a relationship fallout, despite having consensual sex, is a complex and sensitive issue. It is thus, pertinent to take a look at such cases and what has been the opinion of Indian courts in this regard.

Consensual sex between adults does not amount to rape: What the Supreme Court said in the Deepak Gulati vs. State of Haryana case

In Deepak Gulati v. State of Haryana (2013), the woman (at that time 19-year-old) consented to sexual relations with the assumption that the accused would marry her, despite the fact that “she was conscious of the fact that her marriage may not take place owing to various considerations, including the caste factor”. The defendant served more than three years of his sentence before being acquitted by the Supreme Court.

The Supreme Court emphasised that consensual sex between adults, which happens to end in a broken relationship, does not constitute rape. It further clarified the distinction between a false promise of marriage and voluntary sex in the absence of such a commitment.

“Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused 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 latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise,” the court said.

“Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. 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 misrepresentation made to her by the 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 so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives, the court added.

Unless coercion is involved, consensual sexual relations not rape: Supreme Court in Dhruvaram Murlidhar Sonar vs The State of Maharashtra case

A widow working as an Assistant Nurse at the Primary Health Centre at Toranmal, Dhadgaon Taluq, Nandurbar District of Maharashtra had accused Dhruvaram Murlidhar Sonar who worked at the same place as a medical officer of raping her. She contended that the appellant had said that since they belonged to different communities their marriage registration would take a month. After that, she moved into the appellant’s government quarter. The duo resided together as husband and wife and had a sexual relationship. However, she claimed that the appellant did not marry her.

In this case, the Supreme Court stated that consensual physical relationships between adults cannot be deemed rape because the relationship does not culminate in marriage, given that there was no deception or coercion involved. The court noted that not on any occasion the appellant forcibly established sexual relations with the complainant.

Justice Abdul Nazeer said, “Thus, there is a clear distinction between rape and consensual sex. 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 latter falls within the ambit of cheating or deception. There is also a distinction between a 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.”

Uday vs State of Karnataka (2003)

In this case, the prosecutrix, who was about 19 years old, consented to sexual intercourse with the accused Uday, whom she was deeply in love with. The prosecution claimed that the prosecutrix continued to meet the accused because he promised to marry her later. The prosecutrix became pregnant and filed a case after the accused failed to marry her. The Supreme Court said that consent cannot be said to be given under a misconception of fact and emphasised that misconception of facts be examined on a case-to-case basis.

The court noted that the prosecutrix was a grown-up college-going girl and she was aware that any marriage proposal between her and the appellant Uday would be opposed by their families since they belonged to different castes. The court ruled that the prosecutrix chose to engage in a sexual relationship with the appellant and kept it secret as long as she could despite knowing that her marriage with Uday may never happen due to caste differences. The court concluded that the woman voluntarily consented to have sexual relations with the appellant.

“She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact,” the court said.

When Supreme Court said that consensual sex on genuine promise of marriage cannot be called rape and filing FIR against a man in such a case amounts to harassment

In 2022, the Supreme Court ruled that it is not rape if a consensual intimate relationship is founded on a real promise of marriage that cannot be fulfilled. The bench of Justice Sanjay Kishan Kaul distinguished between “a false promise to marriage which is given with the understanding that it will be broken and a breach of promise which is made in good faith but subsequently not fulfilled.”

The court overturned an FIR filed in 2016. A woman accused the appellant of rape and cheating. They had a consensual relationship based on the man’s promise of marriage. However, the couple split up and three years later, the woman filed a complaint against the appellant. However, the court noted that the woman abused the criminal process by filing a case against the appellant adding that legal proceedings against the man would amount to harassment. Finally, the court quashed the FIR.

“The parties chose to have a physical relationship without marriage for a considerable period of time. For some reason, the parties fell apart. It can happen both before or after marriage,” the court said.

When Orissa HC said “Consensual sex cannot be called rape if marriage promise broken”

In July 2023, the Orissa High Court ruled that if a consenting physical relationship was predicated on a promise of marriage that could not be fulfilled for various reasons, it cannot be called rape. The high court dismissed a rape accusation against a Bhubaneswar resident. The complaint against him was made by a woman who had been a friend of the petitioner and has been in a marital conflict with her husband for five years.

“A sour relationship, if initially started and developed genuinely with friendship, should not always be branded as a product of mistrust, and the male partner should never be accused of rape,” the court said.

A similar verdict was given by Kerala High Court in July this year.

Whether it is on assurance of marriage or not, consensual sex cannot be deemed rape: Karnataka HC said

In June this year, the Karnataka High Court held that consensual intercourse in a relationship is not deemed rape if the relationship ends, regardless of whether it is on the pretext of marriage or otherwise. On the 28th of June, a single-judge bench led by Justice M Nagaprasanna rendered the decision while hearing a petition from a man charged with rape and cheating. In this case, the man and complainant met in 2012 at his shop and soon their friendship turned into a physical relationship. In her complaint filed in 2018, the woman claimed that the man had stopped taking her calls and was avoiding her, eventually, it turned out that he got engaged to another woman.

The accused man’s counsel, however, told the court that when the woman came to his shop in 2018, he clearly informed her that he got engaged and that he was not interested in her anymore. The accused contended that the rape complaint against him was meant to extort Rs 10 lakh from him and that he never promised to marry her, rather, it was only a consensual relationship.

“…merely because love wanes away by efflux of time, either at the hands of the complainant or the accused, it would not mean that all consensual acts done between the two could be dubbed as rape….whether it is on the pretext of marriage or otherwise, the acts between the petitioner and the respondent were purely consensual,” the court said.

“…it is an admitted fact that the petitioner and the complainant have had a physical relationship for six years. In the considered view of this court, such a relationship would not amount to rape as defined under Section 375 of the IPC as it is the case of the complainant herself that they were in love and if they were in love, every act in the six years period cannot but be termed to be consensual. In the considered view of this court, the offence under Section 376 of the IPC is loosely laid against the petitioner, which cannot be permitted to be tried,” the court added.

In a similar case, in August 2023, the Karnataka High Court dismissed two criminal proceedings brought by a woman against a Bengaluru resident alleging rape in the promise of marriage following a six-year relationship. The court called it a textbook example of exploitation of the legal system.

“It is not one, two, three, four or five, but six years of a consensual physical or sexual relationship between the petitioner and the complainant after having met through a social media platform. The complaint narrates all details. The allegation that is made later is, from 27 December 2019, the intimacy between the two waned. Fading away of intimacy after 6 years of consensual acts of sexual intercourse cannot mean that it would constitute ingredients of rape,” the court said while dismissing the criminal proceedings against the accused.

“Males cannot be singled out in voluntary sexual union”: When Calcutta HC acquitted a man accused of consensual sex with a minor girl

Back in 2021, the Calcutta High Court absolved a man booked under the Protection of Children against Sexual Offences Act (POCSO) Act, noting that a male alone cannot be indicted for an act of consensual sex between two sufficiently mature persons. The court noted that the 16-year-old girl voluntarily participated in the sexual act and she was not naive to not know about its implications.

If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of the anatomy of the sexual organs of different genders,” a single-judge bench of Justice Sabyasachi Bhattacharyya said.

Rape or no rape?

The above discussion makes it clear that free consent plays a crucial role in whether a sexual relationship between two individuals can be deemed rape or not. It is pertinent to understand what consent exactly means. Consent is considered free if it is granted without force, undue influence, fraud, deception, and “mistake or misconception of facts”.

Courts have frequently emphasised that consensual sex between adults performed voluntarily does not constitute rape. The Supreme Court and numerous High Courts have concluded that a broken relationship or unfulfilled marriage commitment does not automatically translate consenting sex into rape.

It is unjustified to accuse a partner of rape in the aftermath of a consenting sexual relationship. It not only weakens genuine instances of sexual violence but diminishes the gravity of the offence. False accusations have the potential to devastate people’s lives, reputations, and professions, as well as result in false convictions or lengthy legal proceedings. Using rape accusations as a revenge tactic is harassment of accused men and an attack on their dignity. Sometimes, false rape allegations are levelled to extort money.

False rape charges for personal vendetta after a relationship turns sour also perpetuate dangerous preconceptions and biases against both genders, fostering a culture of fear and suspicion in relationships. In addition to destroying the lives of the involved men, these false allegations also harm the integrity of the judicial process.

In 2017, the Delhi High Court judge Pratibha Rani observed that women tend to call their consensual physical acts as incidents of rape. “This court had observed on a number of occasions that the number of cases where both persons, out of their own will and choice, develop a consensual physical relationship, when the relationship breaks up due to some reason, the women use the law as a weapon for vengeance and personal vendetta. They tend to convert such consensual acts as incidents of rape may be out of anger and frustration thereby defeating the very purpose of the provision. This requires a clear demarcation between the rape and consensual sex especially in the case where the complaint is that consent had been given on promise of marriage,” she said while the plea filed by a 29-year-old woman alleging that her husband raped her in 2015 before their marriage.

The prevalence of fake rape charges can be understood by the fact that, according to National Crime Records Bureau (NCRB) figures, around 74% of rape cases under Section 376 of the IPC conclude with the accused being acquitted.

Entering into a physical or sexual relationship based on a promise of marriage is a serious decision that must be carefully considered. Courts have frequently ruled that consensual sexual relations cannot be considered rape if the consent was freely provided, even if the promise of marriage was later broken. It is important to note that if the accused has consistently made false promises since the beginning of the relationship only to abuse the victim and satiate his sexual desires, this is deemed rape since consent is obtained via a misinterpretation of facts.

Entering a relationship with the anticipation of marriage might have some serious emotional consequences. Suppose the relationship does not lead to marriage. In that case, it can arouse a sense of betrayal, hurt, and even disillusionment, which is sometimes used to justify filing false rape cases by terming consensual sex as rape. Couples must communicate honestly about their intentions and expectations in a relationship. Men cannot become collateral damage in an unsuccessful relationship.