Married woman cannot allege rape by live-in partner under false pretext of marriage: HC

New Delhi: A woman who is already married to someone else cannot claim to have been induced into a sexual relationship under false pretext of marriage, the Delhi High Court has said while quashing a rape case against a man, also married, by his live-in partner.

Justice Swarana Kanta Sharma, in an order released on Thursday, noted the case involved two individuals who were both ineligible to lawfully marry each other but were living together pursuant to a “live-in relationship agreement”, and the protection and remedies available under Section 376 (punishment for rape) of the Indian Penal Code cannot be extended to such a “victim”.

The judge observed that live-in relationship between two consenting adults, who are married to different partners, has not been made a criminal offence, and while the parties have the right to determine their own choices, both men and women should “remain conscious of the repercussion” of such a relationship.

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“Once the complainant/respondent no. 2 herself was not legally divorced and is not so till date, the petitioner could not have married her as per law. It was also not mentioned in the agreement that they were living in or maintaining relationship with each other due to a promise of marriage by the petitioner/accused,” the court stated.

“When the victim herself is not legally eligible to marry someone else due to her existing marriage to another partner, she cannot claim to have been induced into a sexual relationship under false pretext of marriage. Thus, the protection and remedies available under Section 376 of the IPC cannot be extended to a victim who was not legally entitled to marry the person whom she was in sexual relationship with,” added the court.

In the instant case, the petitioner accused sought quashing of the FIR for alleged rape. He cited several grounds including that the complainant’s conduct itself was against public policy and norms of society.

In the order, Justice Sharma deprecated the use of “derogatory” remarks made by the accused against the complainant and called out his “misogynistic thinking”. The court said the same standards applied to the male partner and judges cannot pass moral judgments based on one’s gender.

“This Court is of the opinion that although the immorality of the act on the part of the female partner was argued at length before this Court, the same standard applies to the male partner, and no distinction should be made based on gender, as doing so would perpetuate misogynistic thinking,” the court said.

It said courts cannot “serve as legal moralists preaching morality” or “inject morality into existing laws” and no offence can be said to be committed if sexual relations are established between two adults willingly, irrespective of their marital status.

“In many cases of live-in relationships both the parties may be unmarried or either of them may be married or both may be married to their respective spouses,” the court said.

“Individual adults are free to make decisions even those that might not align with societal norms or expectations, however, in those cases they have to remain ready to face potential consequences of such relationships. Needless to say, individual free choices like these will invite individual responsibilities and consequences,” it added.

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