Can sexual intimacy between a live-in couple be called rape, asks Supreme Court

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While examining the issue of consent for sexual relationship between a couple living together, the Supreme Court on Monday queried whether sexual intercourse between them can be termed as rape.

A bench headed by Chief Justice S.A. Bobde and comprising Justices A.S.Bopanna and V. Ramasubramanian said: "If a couple is living together as man and wife...the husband may be brutal, but could the sexual intercourse between the couple, who are living together, can be termed as rape?"

The observations from the top court came while hearing a plea of a person accused of rape by a woman, who had been in a live-in relationship with him for over two years. The woman had filed an FIR for rape after the man married another woman.

Senior advocate Vibha Dutta Makhija, representing the accused, submitted before the bench that the couple used to work together, and they were in a live-in relationship for over two years. The bench noted that making a false promise for marriage is wrong.

According to the complainant, who was represented by advocate Aditya Vashisth, the couple was in a romantic relationship, but she had clearly refused getting into a sexual intimacy before marriage. Vashisth argued that his client's consent was obtained by fraud.

The top court was informed that the couple had gone to Manali, where they participated in a marriage ritual. The petitioner denied that any marriage took place, instead he was a live-in relationship where they had consensual intimacy.

In 2019, the Allahabad High Court had declined to entertain a plea by the petitioner to quash the FIR against him. The petitioner, through advocate Fuzail Ahmad Ayyubi, moved the top court challenging this order. The woman's counsel highlighted that the petitioner had also beaten up his client when they were living together and emphasised consent for the sexual act was obtained by fraud, after she was made to believe that the marriage was real.

The bench observed, "No one should falsely promise marriage and break off. But that is different from saying the act of sexual intercourse is rape." The bench noted that it had settled this matter in its earlier verdicts.

On the aspect of the petitioner beating up the complainant, the bench queried her counsel, "why don't you file a case for assault and marital cruelty. Why file a rape case?" Makhija contended that the complainant had filed such complaints earlier too. "It's a habitual act of this lady. She did same with two others in office," she added. The petitioner's wife had also made an accused in the matter, as a co-conspirator.

"There shall be stay of arrest of the petitioners for a period of eight weeks. Thereafter, the trial court will decide the question of the liberty of the petitioners. The special leave petition is dismissed as withdrawn with liberty as prayed for", said the top court in its order.

The UP government informed the top court that the petitioner's wife has not been chargesheeted by the police. "In view of this, Vibha Datta Makhija, learned senior counsel appearing on behalf of the petitioner, seeks permission to withdraw the special leave petition. Permission is granted. The special leave petition is dismissed as withdrawn", added the top court.

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