Can sexual intimacy between live-in couple be termed rape? SC asks

The Supreme Court on Monday sought to know whether sexual intercourse between a live-in couple can be termed as rape.

“If a couple is living together as man and wife…husband may be brutal, but could the sexual intercourse between couple, who are living together, be termed as rape?” a bench of Chief Justice S A Bobde and Justices A S Bopanna and V Ramasubramanian wondered.

The court was examining the issue of consent for sexual relationship between a couple living together.

A person accused of rape by a woman, who had been in a live-in relationship with him for over two years, approached the court as 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. To this, the bench said making a false promise for marriage is wrong.

Read: Will you marry the girl? Supreme Court asks rape accused

According to the complainant, who was represented by advocate Aditya Vashisth, the couple was in a romantic relationship, but she had clearly refused to get 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 a 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 assaulted his client when they were living together and emphasised that consent for the sexual act was obtained by fraud after she was made to believe that the marriage was real.

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To this, the bench said, “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 asking, “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 the same with two others in the office," she added. The petitioner’s wife was also made an accused in the matter, as a co-conspirator.

The court ordered a stay of arrest for eight weeks and asked the petitioners to approach the trial court for relief.

The UP government said the petitioner's wife has not been chargesheeted by the police.