In a judgment passed on November 22nd last year, the Supreme Court held that if a person had not made the promise to marry with the sole intention to seduce a woman to indulge in sexual acts, such an act would not amount to rape.

The bench comprising Justice AK Sikri and Justice S. Abdul Nazeer was considering an appeal filed by Dr. Dhruvaram Murlidhar Sonar against the High Court order refusing to quash 'rape case' filed against him. The bench noticed that the complainant herself had stated that she had fallen in love with the accused because she needed a companion as she was a widow.

Taking note of this bench said: "They were living together, sometimes at her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time and enjoyed each other's company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind."

Justice Nazeer also referred to some previous judgments on the subject and summarized the position of law as follows: "Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant 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 later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false 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."

Quashing the criminal proceedings against the accused, the bench further added: "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 the misconception created by 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. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC."

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