On November 26, the Supreme Court pointed to an emerging trend wherein long consensual relationships, when they turn sour, were increasingly being criminalized through misuse of the criminal law. Justices BV Nagarathna and N Kotiswar Singh showed concern about the implications of attaching criminality at a late stage in such relationships, saying that it can amount to serious consequences.
The bench said, “If criminality is foisted on long-standing physical relationships after they have gone sour, it could result in the possibility of allegations being made at any point in time, ensnaring individuals in a rigorous criminal process.” They warned against imputing criminal intent to complex civil relationships, saying promises of marriage without fraud do not attract penal provisions.
The court made the remarks during the hearing of an appeal by Mahesh Damu Khare against a Bombay High Court judgment that rejected his petition seeking to quash an FIR lodged by a widow alleging non-consensual sex. Khare, however, contended the relationship from 2008 till 2017 was consensual since the complainant had not raised any protest during their many years together.
The justices stressed that courts must objectively assess the evidence. If no prima facie case is made out, the High Court can quash complaints under Section 482 of the Criminal Procedure Code. The bench said if a physical relationship is continued without insisting on marriage, it is a relationship based on consent and not on false promise of marriage.
Ultimately, the court decided that no prima facie case of rape or cheating had been established against Khare. The judges said allowing the criminal prosecution in the above situation would amount to abuse of the process of law and set aside the high court’s order.
