Every case of 'physical contacts' before breach of promise to marry cannot be said as rape, says the Bombay High Court

In a significant decision, the Bombay High Court has held that every breach of promise to marry does not necessarily amount to rape. The Court also observed that pre-marital sex between couples is no longer shocking in India's big cities. 

Bombay High Court

The observations of the Court came earlier this month, during the hearing of an anticipatory bail application filed by a Nashik resident who was booked on charges of cheating and rape following a complaint filed by his former girlfriend.

The victim who claimed she was pregnant with the petitioner’s child, said despite promising to marry her, he had married another girl. The petitioner, on the other hand, claimed the relationship was consensual, and they could not marry as they belonged to different religions. The victim and the accused, both lawyers, knew each other since 1999 and had a physical relationship since 2006. The victim claimed that the accused had promised to marry her. In 2009, when he said he could not, she had tried to commit suicide. She said that they continued physical relations even after that. 

"Nowadays keeping (a) sexual relationship while having an affair or before marriage is not shocking as it was earlier. A couple may decide to experience sex. Today especially in metros like Mumbai and Pune, society is becoming more and more permissive," said Justice Mridula Bhatkar, adding, "Though unlike western countries, we have social taboo and are hesitant to accept free sexual relationship between unmarried couples or youngsters as their basic biological need; the court cannot be oblivious to a fact of changing behavioural norms and patterns between man and woman relationship in society."

The court said a major and educated girl was expected to know the demands of her body and the consequences of sexual relationships, and in a case it would have to be tested independently if her decision to have sex with a man was a conscious one or not. 

"Today the law acknowledges live-in relationship(s). The law also acknowledges a woman's right to have sex, a woman's right to be a mother or a woman's right to say no to motherhood. Thus, having sexual relationship with a man whether is her conscious decision or not is to be tested independently depending on the facts and circumstances of each and every case and no straightjacket formula or any kind of labelling can be adopted," the judge said. 

The High Court also gave examples of what could be an offence under Section 376 of Indian Penal Code relating to rape - an uneducated poor girl being induced into a sexual relationship after promise of marriage or a man suppressing his first marriage to have sexual relations with a girl. 

The Court also pointed out that a couple may fall out of love and questioned if the physical relationship they had before could be termed as rape. "A couple in love may be having sexual relationship and realize they are not compatible, and sometimes love between the parties is lost and their relationship dries gradually, then earlier physical contacts cannot be said as rape. A marriage cannot be imposed," said the judge. 

The High Court said both the victim and the accused were educated. "The complainant is an educated girl and it shows it was her conscious decision to keep sexual relations. Prima facie at this stage, possibility of non-committal, consensual relationship cannot be denied," the judge said, while granting anticipatory bail to the accused. 

The High Court said if the victim chooses to have the baby, she could adopt legal proceedings against the accused to secure the child's rights.