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.
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| 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.
