Breaking: Every breach of promise to marry is not rape

Bombay High Court while hearing an application for anticipatory bail ruled that every breach of promise to marry is not rape and pre-marital sex between couples is no longer shocking in India’s big cities. Being a society in transition, it could be treated as one of the most significant verdict.

Complainant claimed that, she was pregnant with accused’s child, claimed that, despite promising to marry her, he had married another girl. Accused claimed the relationship was consensual, and they could not marry as they belonged to different religions. However, Court observed 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.

Court further noted that, “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.” Court opined that, “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?”

Court further said that, “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.

Court said that, “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.” 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. However, Court opined that, if “an uneducated poor girl is being induced into a sexual relationship after promise of marriage or a man suppressing his first marriage to have sexual relations with a girl, then such an act will amount to rape under Section 376 of the Indian Penal Code.

While granting anticipatory bail to the accused, Court opined that, “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.” However, Court pointed that, in case the complainant chooses to have the baby, she could adopt legal proceedings against the accused to secure the child’s rights.