Consensual intimacy cannot be branded rape later if a relationship fails: Supreme Court

The Supreme Court has held that physical intimacy in a consensual relationship cannot be treated as rape at a later date merely because the relationship soured or ended, and warned against the growing practice of using criminal law as a weapon in personal disputes.

A Bench of Justices B. V. Nagarathna and R. Mahadevan made the observation while discharging a Kerala-based man of charges of rape, bigamy (second marriage during the subsistence of a first) and cheating. The court said society and the courts must discourage the "weaponisation" of criminal law in the aftermath of an emotional discord between two consenting adults.

"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 noted a "worrying trend" in recent years in which consensual relationships that have come to an end are "retrospectively combed with a fine tooth" to identify what can post-facto be construed as violence and sexual assault.

The judgment drew a distinction between a complete absence of consent — where a relationship was built from the outset on a mirage of deceit and falsehood — and regret over past sexual acts because the relationship later ended. The first is a matter for the criminal law; the second, however unfortunate, cannot by itself turn a consensual relationship into a crime, the court said.

Proceeding on such hindsight, the Bench said, sets the gears of the criminal justice system in motion "in a manner that deprives the accused of his liberty and reputation". It added that such an approach "denudes the man of any agency entirely", because the mere fact of having been in a consensual relationship at one point would bind him to it for fear of being accused of rape later.

The court asked whether a man in such a situation had no right to withdraw from the relationship, and whether such a decision could be termed deceit or fraud. "Clearly not," it said.

The Bench said it had repeatedly witnessed the "disturbing trend where failed relationships are being converted into criminal cases". Rape is a heinous offence and the law must be reserved for situations involving real sexual violence, coercion or manipulation of consent, it said. When every consensual relationship that sours is converted into an accusation of rape, the gravity of the offence is diluted and the allegation itself is negated, the court observed.

It noted that a false accusation exposes 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," the Bench said, adding that courts must view the entire relationship holistically rather than only from the perspective of its end.

At the same time, the court struck a cautionary note in favour of survivors. Rape, it said, strikes at the core of a woman's bodily autonomy and dignity, remains heavily under-reported, and victims are often pressed into silence to protect their own and their family's honour. "For every case where the provisions related to rape are misused, there are several cases that never see the light of day," the Bench said, stressing that genuine cases where facts clearly show sexual assault and violence must be pursued with vigour.

"But equally, the justice system must not be turned into a tool of vengeance when relationships fail," it said. The legislature never intended that consensual sexual acts between adults during a mutually affectionate relationship be retrospectively criminalised merely because the relationship came to an end, the court added.

The ruling adds to a series of Supreme Court decisions in recent years on the alleged misuse of criminal provisions in cases arising from failed relationships, and reiterates that the criminal process carries consequences for liberty and reputation that courts must weigh carefully at the threshold stage.