Cannot allege rape after living like husband and wife, says Cal HC

Kolkata: A consensual sexual relationship turning acrimonious does not constitute rape merely because it has not resulted in marriage, Calcutta High Court has held.The HC on Monday quashed a criminal case against a man accused of raping a woman, whom she had promised to marry but later backed out, and forcing her to undergo an abortion. The court held that the two voluntarily travelled together, stayed together and conducted themselves in a manner "akin to husband and wife," which indicated mutual consent, not deception.
Justice Chaitali Chatterjee (Das) held that a man could not be convicted of rape just because a consensual sexual relationship turned bitter. She clarified that for consent to be considered as given under a "misconception of fact" — which in this case was the promise of marriage — the deception must be present since the inception of a long-standing relationship."There must have been a fraudulent... intention at the very inception and that she was induced to enter the sexual relationship," Justice Chatterjee (Das) held.The judge held that the way the man and the woman conducted themselves "clearly indicates mutual consent and companionship rather than inducement by deception".In this case, the woman entered a relationship with the accused in 2017. She alleged that in 2018, he forced her to drink and then raped her, but she remained silent because he promised to marry her. Subsequently, they went on trips to Digha and Goa. In 2020, she became pregnant and underwent an abortion which, according to medical reports placed before the HC, was done with her consent while the accused signed as her guardian. The woman alleged that she agreed to the abortion because the accused promised to marry her.After he refused to marry her, she lodged a complaint with Salboni police station in West Midnapore on Feb 16, 2022. The man was arrested on Feb 23. A charge sheet was filed against him on July 21 under IPC sections dealing with rape, cheating, causing a miscarriage without a woman's consent, and criminal intimidation.Justice Chatterjee (Das) noted: "The romantic relationship... started in 2017 and continued until the relationship turned sour in 2022. During the... relationship, they indulged in sexual activity, spent nights together at various hotels in Digha, Park Street, Kharagpur, and Goa, and lived like husband and wife. It is also admitted she became pregnant and the pregnancy was terminated with the consent of the victim as well as the accused... Instead of lodging any complaint against the accused, she continued the relationship… So, as of now, nothing suggests that at any point of time she was under a misconception for the last 5 or 6 years."The counsel for the accused had submitted that the woman was an educated adult who voluntarily entered into a physical relationship with the accused while "being aware of the consequences".