By LE Staff

New Delhi, March 1: The Supreme Court on Monday said when a couple is in a prolonged live-in relationship, consensual sex between them cannot be termed as rape if the man failed to keep his promise of marriage to the woman.

In an observation, the Supreme Court also questioned whether sexual intercourse between man and wife can be termed as rape. “… however brutal the husband is… when two people (are) living as husband and wife… can sexual intercourse between them be called rape?” a bench of Chief Justice S A Bobde, Justice A S Bopanna and Justice V Ramasubramanian asked, reported NDTV.

The top court also made it clear that using the word “habitual” for rape survivors was impermissible under law. 

The apex court was hearing a case related to two employees of a call centre who were in a live-in relationship for five years. After the man married another woman, his former live-in partner accused him of raping her, saying he had indulged in sexual intercourse with her by making the false promise of marriage. 

The bench said, “Making a false promise to marry is wrong. Even a woman should not promise to marry and then break away. But that does not mean in a prolonged live-in relationship, sexual intercourse will be categorised as rape,” as reported by The Times of India.

Senior Advocate Vibha Dutta Makhija, appearing for the man, said a dangerous precedent would be set if consensual sex in a live-in relationship results in rape charges leading to the arrest of the man. 

Makhija said the complainant was “habitual” of making such allegations as she had done the same with two other men. The bench, however, said using the word “habitual” for rape survivors was impermissible under law. Makhija responded by saying she was aware of the sensitivity of the situation, even as she insisted that the complainant’s allegations were false.

Aaditya Vashishth, appearing for the complainant, claimed that the man had married the woman in a temple and also alleged that he had later assaulted her and extorted money.  

Providing the man protection from arrest for eight weeks, the bench asked him to apply for regular bail. “It’s a good case for you to seek discharge from the trial court,” the bench said and asked him to find out if the prosecution during trial was able to produce evidence supporting rape charges and disposed of the petition.

In 2018, the Supreme Court in two judgements — https://www.legitquest.com/case/dr-dhruvaram-murlidhar-sonar-v-the-state-of-maharashtra-and-others/1C4A87 and Shivashankar @ Shiva v. State of Karnataka & Anr., in Criminal Appeal No.504 of 2018 — had held that if a woman was voluntarily in a live-in relationship, it would be tough to categorise sexual intercourse as rape.   

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