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Synopsis

The Supreme Court on November 26, 2024, observed a troubling trend where prolonged consensual relationships, once they turn sour, are increasingly being criminalized through the misuse of criminal jurisprudence.

A bench of Justices B V Nagarathna and N Kotiswar Singh said, "In our view, if criminality is to be attached to such prolonged physical relationship at a very belated stage, it can lead to serious consequences. It will open the scope for imputing criminality to such long term relationships after turning sour, as such an allegation can be made even at a belated stage to drag a person in the juggernaut of stringent criminal process".

The bench cautioned that there is always a danger of attributing criminal intent to an otherwise disturbed civil relationship of which the court must also be mindful.

"There may be occasions where a promise to marry was made initially but for various reasons, a person may not be able to keep the promise to marry. If such promise is not made from the very beginning with the ulterior motive to deceive her, it cannot be said to be a false promise to attract the penal provisions of Section 375 IPC, punishable under Section 376 IPC," the bench said.

The court allowed an appeal by Mahesh Damu Khare, a social worker, against the Bombay High Court's 2018 judgment which dismissed his petition filed under Section 482 of the Criminal Procedure Code to quash the FIR lodged by a widow and mother of two daughters, on August 15, 2017.

The appellant contended that the complainant herself admitted that she was in a relationship with the appellant since they met for the first time in 2008 which continued till 2017. Though it was alleged that the appellant had sexual relationship with her against her consent, it would be inconceivable that the appellant would force himself upon her for so many years without there being any protest or complaint from her side. This behaviour of the complainant clearly showed that it was a consensual relationship and the allegation of rape was concocted only after the appellant refused to provide any further financial assistance to her or succumb to her demand of marrying her, his counsel submitted.

In such cases, the bench said, the court has to examine the matter by taking a prima facie view based on the materials on record and if on consideration of the factual matrix of the allegations, no prima facie case is made out of commission of any offence of which cognizance can be taken, the High Court would be within its power to intervene and quash any such complaint or FIR in exercise of the inherent power under Section 482 CrPC.

"In our view, if a man is accused of having sexual relationship by making a false promise of marriage and if he is to be held criminally liable, any such physical relationship must be traceable directly to the false promise made and not qualified by other circumstances or consideration. A woman may have reasons to have physical relationship other than the promise of marriage made by the man, such as personal liking for the male partner without insisting upon formal marital ties," the bench said.

Thus, the court opined, in a situation where the physical relationship is maintained for a prolonged period knowingly by the woman, it cannot be said with certainty that the said physical relationship was purely because of the alleged promise made by the appellant to marry her.

"Unless it can be shown that the physical relationship was purely because of the promise of marriage, thereby having a direct nexus with the physical relationship without being influenced by any other consideration, it cannot be said that there was vitiation of consent under misconception of fact," the bench said.

In the present case, the court said, even assuming that the appellant had made the promise in 2008 when they met for the first time, the fact that they remained unmarried for a long period till 2017 without there being any protest or objection by the complainant, did not indicate the intention at the initial stage itself to make the promise falsely to marry the complainant.

"Making an allegation of non-fulfilment of promise to marry without undue delay by the promissee would, on the other hand, be an indicator of a false promise being made from the initial stage," the bench said.

In the case, the court pointed out that the physical relationship between the appellant and the complainant continued for a long period of about a decade and as such it was difficult to infer that the appellant had made a false promise since the initial stage and continued to make false promises to marry her on the basis of which she also continued to have physical relationship with him.

The court felt that it was more of an extra-marital affair during the aforesaid period without any insistence by the complainant for getting married to the appellant. The fact that the complainant continued to have a physical relationship for a long time without any insistence on marriage would indicate the unlikelihood of any such promise made by the appellant for marrying her and it rather indicates that the relationship was a consensual one, it opined.

"In our opinion, the longer the duration of the physical relationship between the partners without protest and insistence by the female partner for marriage would be indicative of a consensual relationship rather than a relationship based on false promise of marriage by the male partner and thus, based on misconception of fact," the bench said.

The bench said the criminal liability attached to such false promise would be diluted after such a long passage of time and in light of the fact that no protest was registered by the complainant during all these years.

"Such a prolonged continuation of physical relationship without demurral or remonstration by the female partner, in effect takes out the sting of criminal culpability and neutralises it. It will be very difficult to assume that the complainant who is otherwise a mature person with two grown up children, was unable to discover the deceitful behaviour of the appellant who continued to have sexual relationship with her for such a long period on the promise of marriage," the bench said.

"Any such mendacious act of the appellant would have been exposed sooner without having to wait for nine years. The inference one can draw under the circumstances is that there was no such false promise made to the complainant by the appellant of marriage by continuing to have physical relationship so as to bring this act within the province of Section 376 IPC and therefore, there was no vitiation of consent under misconception of fact," the bench added.

The court held that in the case at hand no primary facie case had been made of rape punishable under Section 376 IPC and no allegations of cheating had been made against the appellant to fall within the scope of Section 420 IPC nor of any of the offences under Sections 504 and 506 of the IPC.

"Allowing the criminal proceeding against the appellant in the facts and circumstances to continue, where no criminal liability can be attached, would amount to abuse of the process of court," the bench said, setting aside the High Court's order.

Case Title: Mahesh Damu Khare Vs The State of Maharashtra & Anr