Holding that failure of a relationship is no ground to file a rape case, the Supreme Court has said the society and courts must discourage weaponisation of criminal law in the aftermath of an emotional discord between two consenting adults.
“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,” a Bench of Justice BV Nagarathna and Justice R Mahadevan said.
Allowing a Keralam man’s appeal against the Kerala High Court’s order, the Bench on Friday discharged him of charges of rape, bigamy and cheating.
Writing the judgment for the Bench, Justice Nagarathna said the justice system must not be turned into a tool of vengeance when relationships fail.
“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,” she wrote.
Noting that “This is not merely a matter of personal dispute,” the top court said, “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.”
The Bench expressed serious concern over the recent “worrying trend” wherein failed consensual relationships retrospectively combed with a fine tooth so as to identify what can post-facto be construed as violence and sexual assault.
“There is thus a need to distinguish between an absence of consent in its entirety because of it having been built entirely on a mirage of deceit and falsehood at the outset on the one hand from the experiencing of regret over having consented to past sexual acts, owing to the later demise of the relationship. While the latter scenario is unfortunate, such hindsight on its own cannot constitute a consensual relationship as a crime and set the gears of the criminal justice system into motion in a manner that deprives the accused of his liberty and reputation,” it said.
“In fact, such an approach denudes the man of any agency entirely, as the mere factum of being in a consensual relationship at one point would bind him to it entirely for fear of being accused of rape at a subsequent point of time,” it noted.
“In such a scenario, 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,” the top court said.
“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,” it noted.
However, sounding a note of caution, the Bench said, “…rape is an offence that strikes at the core of a woman’s bodily autonomy and dignity and 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,” it said, emphasising that genuine cases must be pursued with vigour where facts clearly show sexual assault and violence.
