SC was hearing an appeal filed by Dr Dhruvam Murlidhar Sonar against the Bombay HC, which had refused to quash criminal proceedings against him in a rape case filed by his live-in female partner.

Refusal to marry after consensual sex during live-in not rape 6 points from SC orderImage for representation
news Law Thursday, January 03, 2019 - 15:35

The Supreme Court, while recently hearing an almost two-decade-old complaint, held that consensual sexual relations between live-in partners could not be termed as rape if the man fails to marry the woman due to circumstances beyond his control. The bench was hearing an appeal filed by a government doctor, Dr Dhruvam Murlidhar Sonar, against the Bombay High Court, which had refused to quash criminal proceedings against him in a rape case filed by the woman he was living in within the late 1990s and 2000.

The bench, comprising Justices AK Sikri and S Abdul Nazeer, said that since the complainant had admitted to being in a relationship with Sonar and was consensually living with him, sexual relations between them would not amount to rape, even though he failed to marry her. The complainant, who has two children, had lost her husband in 1997. She was working as an assistant nurse with her live-in partner, Dr Sonar, who was working as a government doctor.

Meanwhile, Dr Sonar had also informed the woman that he was having differences with his wife and was planning to divorce her. He also told her that since they belonged to different communities, they would need a month to register their marriage.

Following this, the complainant and Dr Sonar began to live together, “as if they were husband and wife,” the court order notes. “They resided some time at her house and some time at the house of the appellant. The appellant acted as if he has married her and has maintained a physical relationship with her. However, he has failed to marry her as promised,” it adds.

“In the year 2000, complainant received the information from the co-accused (Dr Sonar’s brother) about the marriage of the appellant with some other woman. Therefore, she filed the aforesaid complaint and FIR dated 06.12.2000 came to be registered against the appellant and the co-accused,” the court order says.

The woman filed a police complaint in December 2000. An FIR was registered under Sections 376(2)(b) (punishment for rape committed by a public servant taking advantage of a woman in his custody or subordinate to him), 420 (Cheating and dishonestly inducing delivery of property) read with Section 34 (acts done by several persons in furtherance of common intention) of the IPC and under Section 3(1)(x) of the SC/ST Act.

After an investigating agency submitted its report in the case in June 2001, the accused moved the Bombay High Court to quash the FIR and chargesheet against him under section 482 of the CrPC. The HC refused the same in July 2018, prompting him to approach the apex court.

The Supreme Court has now provided relief to the man, quashing the FIR against him. He is no longer being held guilty of rape.

Here are the important points the Supreme Court made while giving the ruling:

1. Referring to several past cases, where a woman had filed a case of rape after the man did not marry her, the Supreme Court established that there is a clear distinction between rape and consensual sex. It placed emphasis on the need to establish whether the man actually wanted to marry the victim in such cases, or only said so to satisfy his lust, which would fall under cheating or deception.

2. The court emphasised on the distinction between a “breach of promise” and a “false promise”. Most of the cases that the court referred to amounted to a breach of 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,” the judges said.

3. Placing emphasis on consent and willingness on part of the woman to engage in sex, the Supreme Court said that there may be cases where a woman agrees to physical intimacy “on account of her love and passion for the accused”, and not based on “the misconception created by accused”.

4. There is also a need to establish whether the accused man was unable to marry the woman due to circumstances beyond his control, “despite having every intention to”. In such a case, too, if there are sexual relations between the two, they would not amount to rape should the man fail to keep his promise of marriage.

5. The court said that by the complainant’s own admission in the present case, she was in love with the doctor, and was living with him of her own volition. The judges noted that they belonged to different communities and that Dr Sonar had already said to the woman that it would take a month to register their marriage if they were to marry. “The complainant further states that she had fallen in love with the appellant and that she needed a companion as she was a widow,” it observed.

6. Establishing that the relationship was voluntary and consensual, the court observed that it was not as though the man had forcibly raped her. Having sexual relations was a “conscious decision” on her part, after “application of mind to the things that happened,” the order states. “It is not a case of a passive submission in the face of any psychological pressure exerted [...],” it adds. Asserting that tacit consent was given by the woman, the court ruled that this consent was not a result of a misconception (like that of marriage) created in her mind.

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