Can't charge man with rape over consensual sex even if marriage eludes: Supreme Court

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PTI, New Delhi, May 20 2013: A man cannot be prosecuted for rape for being in a sexual relationship with his major woman friend if he intended to marry her but the wedlock could not take place due to some circumstances, the Supreme Court today held.

A bench of justices B S Chauhan and Dipak Misra said that a person cannot be accused of rape if the girl agrees to have sexual intercourse with him on account of her love and passion and he did not have any mala fide intention.

"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," the bench said.

It said that there is distinction between rape and consensual sex and "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 apex court set aside a Punjab and Haryana High Court order which had upheld a trial court verdict sentencing a man to a seven-year jail term for rape. It delivered the judgement after finding that he intended to marry his 19-year-old girlfriend and there was no evidence that his promise of marriage was false.

"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," the bench said.

"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," it said.