SC questions sexual assault charge in long-term consensual live-In relationship case

If two adults stayed together for several years in a mutually consensual live-in relationship and have a child together, then how can a criminal case of sexual assault on false promises of marriage be made out of it, asked the Supreme Court on Monday (April 27).

The remarks were made during the hearing of a woman’s plea challenging the Madhya Pradesh High Court's verdict to quash FIR under Sections 69, 115(2) and 74 of the Bharatiya Nyaya Sanhita, 2024, against her former live-in partner who she alleged sexually exploited her on the promise of marriage.

The woman alleged that the man lured her with the promise of marriage when she became a widow at a young age, adding that he concealed from her that he was already married.

Bench questions criminality in consensual relationship

During the hearing, Justice Nagarathna questioned the legal premise of the allegations, asking where the scope of making a criminal case was when the two parties were in a consensual relationship.

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Pointing out that the two were in a live-in relationship, the judge further stated that there was no “marriage bond”, adding that even though the man had walked out, it cannot be termed as a criminal offence.

Arguments on exploitation and vulnerability

The petitioner’s counsel argued that the accused was a friend of the complainant’s brother-in-law and had exploited her vulnerability when she became a widow at a young age. It was further argued that he sexually exploited her on the promise of marriage.

Justice Nagarathna, however, asked why the complainant lived with the accused before marriage.

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“Where is the question of offence when there is a consensual relationship? They are living together and she begets a child from him and then there is no marriage and then she says sexual assault? For how long they lived together? For 15 years they lived together”, Justice Nagarathna asked.

“Why did she go and live with him before marriage? Now we ask these questions, they will say we are victim-shaming. What is this?” she added as quoted by Live Law.

Live-in risks and absence of legal bond

Justice Nagarathna indicated that the mere breakdown of a live-in relationship, even after years together, does not by itself translate into criminal liability.

“She lived with him. She had a child from him. He walks out because there is no marriage bond. Legal bond is not there. He walks out that is the risk in a live in relationship. So once he walks out, it doesn't become a criminal offence”, she said.

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She drew a distinction between relationships with legal recognition and those without it, noting that the complainant’s position might have been different had there been a formal marriage. In the absence of that, she observed, the possibility of separation remains inherent.

“These are all the vagaries of a relationship outside marriage…See, if there was marriage, the question of her rights would have been better. She could have filed regarding bigamy. She could have filed for maintenance. She would have got those reliefs. Now since there is no marriage, they live together. This is the risk. They can walk out any day. What do we do?” she said.

Allegations of bad faith and conduct

The petitioner’s counsel argued that the promise of marriage was never genuine to begin with and that the accused had taken advantage of the woman’s circumstances after she was widowed at a young age. It was further submitted that he had been involved with other women as well and had abused his position as a government employee.

The bench, however, did not engage with allegations concerning other relationships, choosing instead to limit its consideration to the facts at hand.

Delay in filing complaint questioned

Justice Nagarathna also raised questions about the timing of the complaint, pointing to the gap between the relationship and the initiation of criminal proceedings. “Why at this point of time she has filed a complaint after how many years? See, they are all live in relationship. If they split, the lady has to file a complaint against on the man for sexual assault?”, she said.

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Even assuming, she said, that the complainant had been misled, the record pointed to a prolonged live-in arrangement that resulted in the birth of a child.

Focus shifts to child welfare and mediation

The judge suggested that recourse could lie in securing financial support for the child, making it clear that the child’s status could not be diminished on account of the parents’ relationship. She also floated the possibility of mediation to address that aspect.

“Even if he is put behind bars, what will she gain? We can think of some maintenance for the child. Child is now 7 years. So he (accused) has deserted her. Will you go for mediation? At least some monetary compensation can be made for the child”, she said.

The Court issued notice, returnable on May 25, indicating that it would, among other things, explore whether any settlement could be worked out between the parties.