New Delhi: Concerned over the rising trend of filing criminal cases after failure of relationships, the Supreme Court Friday said physical intimacy during good times cannot be branded as rape later just because that association turned sour or broke.
In a significant judgement, a bench of justices B V Nagarathna and R Mahadevan discharged a Keralam-based man of charges of rape, second marriage in the subsistence of first and cheating, saying the society and courts must discourage the weaponisation of criminal law in the aftermath of an emotional discord between two consenting adults.
It added, “In such cases, physical intimacy that occurred during the currency of a functioning relationship cannot be retrospectively branded as acts of rape merely because the relationship soured and no longer subsists.”
The bench said the court wish to note a worrying trend in recent years wherein consensual relationships that have come to an end are retrospectively combed with a fine tooth so as to identify what can post-facto be construed as violence and sexual assault.
“There is thus a need to distinguish between an absence of consent in its entirety because of it having been built entirely on a mirage of deceit and falsehood at the outset on the one hand from the experiencing of regret over having consented to past sexual acts, owing to the later demise of the relationship,” it said.
The top court said while the latter scenario is unfortunate, such hindsight on its own cannot constitute a consensual relationship as a crime and set the gears of the criminal justice system into motion in a manner that deprives the accused of his liberty and reputation.
While expressing concern, it said, “In fact, such an approach denudes the man of any agency entirely, as the mere factum of being in a consensual relationship at one point would bind him to it entirely for fear of being accused of rape at a subsequent point of time.”
The top court wondered, “In such a scenario, can it be said that the man had no right to withdraw from the relationship? Can such a decision be termed as deceit or fraud? Clearly not.”
The bench said, this court has time and again witnessed the ‘disturbing trend where failed relationships are being converted into criminal cases”.
“Rape, being a heinous offence, must be reserved for situations where there is real sexual violence, coercion, or manipulation of consent. When every consensual relationship which sours is converted into an accusation of rape, it not only dilutes the gravity of the offence alleged or rather negates the very allegation of crime,” it said.
The bench said false accusation of rape also subject the accused to irreparable stigma, harassment and injustice.
“This is not merely a matter of personal dispute. The abuse of the criminal justice process in such cases is a matter of serious concern and must be condemned. Hence, courts would have to view the entire relationship holistically rather than from the perspective of its end,” it said.
The court sounded a note of caution and said, rape is an offence that strikes at the core of a woman’s bodily autonomy and dignity, and it continues to be heavily underreported, and victims are encouraged to choose silence so as to protect their and their family’s honour and reputation over seeking justice.
“For every case where the provisions related to rape are misused, there are several cases that never see the light of day,” it flagged and emphasised that genuine cases must be pursued with vigour where the facts clearly show sexual assault and violence.
“But equally, the justice system must not be turned into a tool of vengeance when relationships fail,” it underscored, adding that the legislature has never intended that consensual sexual acts between adults occurring during a mutually affectionate relationship, to be retrospectively criminalised merely because the relationship came to an end.
The bench said, “It is unfortunate that despite judicial deprecation, this trend is increasing, and it is a matter of concern for the courts as often settlement of disputes comes with huge monetary considerations to be borne by the male accused.”
The top court said that none of the ingredients of rape and cheating and deceit was made against the man, who approached the top court challenging the Kerala High Court order dismissing his discharge petition and a plea for quashing of the proceedings against him.
According to the prosecution, the woman alleged that the man married her by concealing his previous marriage and had sexual intercourse with her based on the consent obtained as the outcome of an “illegal marriage” by means of fraud.
She alleged that the accused cohabited with her deceitfully, inducing the belief of lawful marriage. He married her while his earlier marriage was subsisting, she alleged.
The woman, who was divorced from an earlier marriage, had alleged rape, cheating and breach of trust by the accused. They cohabited from 1996 till 2003 after getting married at Mysuru, she alleged.
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