Physical Intimacy That Occurred During Currency Of A Functioning Relationship Cannot Be Retrospectively Branded As Acts Of Rape: Supreme Court
The Court discharged a man accused of rape, cheating and bigamy-related offences, and held that complainant’s continued cohabitation after learning of his earlier marriage negates claim of consent vitiated by deceit.
Justice B.V. Nagarathna, Justice R. Mahadevan, Supreme Court
The Supreme Court has held that sexual intimacy during a functioning relationship cannot be retrospectively branded as rape merely because the relationship later soured. Courts, it said, must view the entire relationship holistically and not from the perspective of its end.
The Court discharged a man facing charges under Sections 376, 420, 493, 494 and 495 of the Indian Penal Code, 1860. It held that the complainant continued to cohabit with him for seven years despite learning of his earlier marriage within months, so her consent could not be said to rest on a belief in a lawful marriage.
A Bench of Justice B.V. Nagarathna and Justice R. Mahadevan observed, “…can it be said that the man had no right to withdraw from the relationship? Can such a decision be termed as deceit or fraud? Clearly not. In such cases, 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”.
“…Considering this, it is untenable and incredulous that she continued to believe herself to be appellant’s legal wife solely on the basis of his alleged oral reassurances to the contrary. The case at hand is evidently one of consensual relationship that perhaps was camouflaged in a marriage for the sake of avoiding scrutiny or stigma, which eventually came to an end. The mere factum of the relationship having turned sour and acrimonious cannot on its own convert earlier incidences of consent to sexual acts into offences of rape. Such a conclusion would be putting the cart before the horse, predicating the prior act of consent on the outcome of the relationship itself into an offence”, it noted further.
Senior Advocate R. Basant appeared for the appellant and K. Rajeev, AOR appeared for the respondent.
“This Court has time and again witnessed the disturbing trend where failed relationships are being converted into criminal cases. Rape, being a heinous offence, must be reserved for situations where there is real sexual violence, coercion, or manipulation of consent. When every consensual relationship which sours is converted into an accusation of rape, it not only dilutes the gravity of the offence alleged or rather negates the very allegation of crime. It also subjects 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. Hence, courts would have to view the entire relationship holistically rather than from the perspective of its end”, it noted further.
The complainant, previously married and divorced, alleged that the appellant presented himself as a bachelor and married her at a temple in Mysuru in 1996. They lived together until 2003. She claimed she consented to sexual relations believing the marriage valid, while he was already married with two children.
A Domestic Violence Act complaint she filed in 2008 was dismissed in 2009. A private complaint under the IPC was dismissed for non-prosecution in 2011. A second complaint was referred to the police under Section 156(3) of the Code of Criminal Procedure, 1973, leading to an FIR. The Trial Court rejected the appellant’s discharge application on January 9, 2015. The Kerala High Court dismissed his revision and connected petition on May 21, 2025. The Supreme Court stayed the trial on July 18, 2025.
Applying Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 and Sajjan Kumar v. CBI (2010) 9 SCC 368, the Bench said that at the discharge stage a court must assess the probability that the offence was committed, without conducting a pre-trial. It found the probability here “entirely non-existent”.
The Bench noted that the complainant was told of the earlier marriage by the appellant’s brother within months and still stayed on. It called it “untenable and incredulous” that she continued to believe herself his legal wife. The repeated sexual acts, it held, were part of an ongoing relationship and could not be severed from it to attract Section 376(2)(n). Section 420 failed as no property was delivered. Sections 493 to 495 failed as continued cohabitation after knowledge excluded deceit. The complainant could not recall the temple, and IVF papers and a joint account suggested only a long-standing relationship.
The Court cautioned that genuine cases must be pursued with vigour, and that consent may be vitiated where a woman was truly kept in the dark. That principle, it said, must rest on facts and evidence.
“At this juncture, this Court must also sound a note of caution. Rape is an offence that strikes at the core of a woman’s bodily autonomy and dignity. It continues to be heavily underreported and victims are encouraged to choose silence so as to protect their and their family’s honour and reputation over seeking justice. For every case where the provisions related to rape are misused, there are several cases that never see the light of day. We must emphasise that genuine cases must be pursued with vigour where the facts clearly show sexual assault and violence. But equally, the justice system must not be turned into a tool of vengeance when relationships fail. The legislature has never intended that consensual sexual acts between adults occurring during a mutually affectionate relationship, to be retrospectively criminalised merely because the relationship came to an end. It is unfortunate that despite judicial deprecation, this trend is increasing, and it is a matter of concern for the courts as often settlement of disputes comes with huge monetary considerations to be borne by the male accused”, the Court said.
It set aside the orders of the High Court and the Trial Court, allowed the discharge application and discharged the appellant.
Cause Title: Santhosh Kumar N.P. v. State-Station House Officer, Kadirur Police, Tellicherry, Kannur District & Another (Neutral Citation: 2026 INSC 1179)
Appearances:
Appellant: Senior Advocate R. Basant.
Respondent: K. Rajeev, Advocate-on-Record.