Supreme Court grants protection to rape accused, asks to cooperate in probe

Couple in love may have sexual relations and later realise they are not compatible, says accused; Court has previously held that consensual sex after a ‘genuine’, but broken promise to marry, is not rape

September 24, 2023 07:56 pm | Updated September 25, 2023 04:14 am IST - NEW DELHI

The Supreme Court gave six weeks for the State of Maharashtra to respond to the contention.

The Supreme Court gave six weeks for the State of Maharashtra to respond to the contention. | Photo Credit: SHIV KUMAR PUSHPAKAR

The Supreme Court has granted interim protection to a man accused of rape, returning the focus to its earlier decisions that consensual sex following a ‘genuine’ but unfulfilled promise to marry does not amount to rape.

A Bench headed by Justice Vikram Nath recently ordered the Maharashtra Police not to take any “coercive measures against the petitioner, provided he extends all cooperation in the investigation”.

“The present case is based on a promise to marry and the subsequent break-up of the relationship. Every breach of promise to marry cannot be said to be cheating or rape,” argued an anticipatory bail plea filed by the man, who is represented by advocate Sana Raees Khan, M.S. Vishnu Shankar, and Sriram Parakkat. “A couple in love with each other may have a sexual relationship and later on realise they are not compatible with each other. Their earlier physical contact cannot be called rape,” the plea said.

‘Know the consequences’

The petition reasoned that the complainant was a “27-year-old educated woman”.

“A major and an educated girl is expected to know and understand the consequences of getting into a sexual relationship,” the man submitted.

The Supreme Court Bench gave six weeks for the State of Maharashtra to respond to the contention.

False vs good faith promise

In August last year, the Supreme Court had held in its order in Mandar Deepak Pawar vs State of Maharashtra that it was not rape if a consensual physical relationship was based on a genuine promise of marriage which could not be fulfilled.

A Bench led by Justice Sanjay Kishan Kaul had then distinguished between “a false promise of marriage and breach of a promise made in good faith but subsequently not fulfilled”. The court was dealing with an FIR in which a woman had accused a man of rape and cheating. They had previously been in a consensual relationship before falling apart.

Consensual, continued sex

“The parties chose to have 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 had recorded in its August 2022 order while quashing the FIR.

The 2022 order was fortified by a 2019 judicial view of the top court in Pramod Suryabhan Pawar vs State of Maharashtra. In this case too, the court had quashed the FIR against a man accused of rape, on the grounds that the woman was “aware that there existed obstacles in marrying the accused and still continued to engage in sexual relations”.

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