Prolonged cohabitation in live-in relationship implies consent; can’t allege rape: SC-OxBig News Network

Holding that prolonged cohabitation in live-in relationship implied consent for physical relationship, the Supreme Court has said that the woman in such a relationship can’t accuse the man of rape on false promise of marriage, if he refuses to tie the knot.

“In our view, if two able-minded adults reside together as a live-in couple for more than a couple of years and cohabit with each other, a presumption would arise that they voluntarily chose that kind of a relationship fully aware of its consequences,” a Bench of Justice Sanjay Karol and Justice Manoj Misra said in its April 28 order.

“Therefore, the allegation that such a relationship was entered because there was a promise of marriage is in the circumstances unworthy of acceptance, particularly, when there is no allegation that such physical relationship would not have been established had there been no promise to marry,” the Bench said, quashing the FIR against the man.

“Moreover, in a long drawn live-in relationship, occasions may arise where parties in that relationship express their desire or wish to formalise the same by a seal of marriage, but that expression of desire, or wish, by itself would not be indicative of relationship being a consequence of that expression of desire or wish,” it said.

“A decade or two earlier, live-in relationships might not have been common. But now more and more women are financially independent and have the capacity to take conscious decisions of charting their life on their own terms. This financial freedom, inter alia, has led to proliferation of such live-in relationships,” the Bench said.

“Therefore, when a matter of this nature comes to a court, it must not adopt a pedantic approach; rather the court may, based on the length of such relationship and conduct of the parties, presume implied consent of the parties to be in such a relationship regardless of their desire or a wish to convert it into a marital bond,” it said.

Noting that the relationship between the appellant (man) and the second respondent (the informant) was spread over two years, the Bench pointed out that they not only admitted of having physical relations with each other but also of living together in a rented accommodation as a live-in couple.

“In our considered view, the long-drawn relationship of the appellant and the second respondent including the circumstance of their living together and cohabiting with each other, that too, in a separate rented accommodation, would give rise to a presumption that their relationship was based on a valid consent,” the top court said.

“The FIR does not allege that a physical relationship was established only because there was a promise of marriage. Besides, the physical relationship continued for over two years without a complaint in between. In such circumstances, a presumption would arise of there being a valid consent for initiating and maintaining the physical relationship that spanned over two years,” it said.

Noting that the settlement November 19, 2023 agreement pointed out that the parties had been in love, it said, “In such circumstances, we are of the view that on ground of refusal to marry, the appellant cannot be subjected to prosecution for the offence of rape. The other allegations of assault and abuse have not been supported by any material particulars. Even the alleged sexual assault on 18.11.2023 is negated by the recital in the settlement agreement that parties love each other.”