Long-Standing Consensual Relationship Cannot Later Be Retrospectively Branded As Rape: SC

Supreme Court on Consensual Relationships and Allegations of Rape

It entirely stands to reason that while striking the right chord and so also taking the most pragmatic step, the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Santhosh Kumar NP vs State SHO Kadipur Police, Tellicherry, Kannur in Criminal Appeal Nos. of 2026 (Arising Out of SLP (Crl.) Nos.10173-10174 of 2025) and cited in Neutral Citation No.: 2026 INSC 1179 that was pronounced just recently on October 30, 2026 has while discharging a man of the offences under Sections 376, 420, 493, 494 and 495 of the Indian Penal Code minced absolutely just no words to hold indubitably that a long-standing consensual relationship that later turned acrimonious cannot be converted into rape, and that sexual acts during its subsistence cannot be “retrospectively branded” as rape.

In other words, the top court while expressing its grave concerns over the rising trend of filing criminal cases after the failure of relationships has mandated explicitly that physical intimacy during good times cannot be branded as rape later just because the alliance soured or broke! We thus see that a Bench of Apex Court comprising of Hon’ble Ms Justice BV Nagarathna and Hon’ble Mr Justice R Mahadevan allowed the appeals of Santhosh Kumar N.P. against the Kerala High Court’s order of 21.05.2025 which had upheld the Sessions Court’s refusal to discharge him in S.C. No. 371/2013.

Background and Facts of the Case

Supreme Court Introduces the Criminal Appeals

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Ms Justice BV Nagarathna for a Bench of the Apex Court comprising of herself and Hon’ble Mr Justice R Mahadevan sets the ball in motion by first and foremost putting forth in para 2 that,

“These criminal appeals have been preferred by the appellant assailing the impugned common order dated 21.05.2025 passed by the High Court of Kerala dismissing Cr. R.P. No.295/2015 and Crl. M.C. No.1221/2015.”

Relationship and Alleged Temple Marriage

To put things in perspective, the Bench envisages in para 3 while elaborating on the facts of the case stating that,

“Briefly stated, the facts of the case are that respondent No.2 herein was earlier married to one Divakaran. After they were divorced, respondent No.2 became acquainted with the appellant herein and the acquaintance gradually matured into a personal relationship. It is the case of respondent No.2 that appellant herein represented himself to be a bachelor and offered to marry her. In the year 1996, appellant and respondent No.2 travelled to Mysuru, where they were married at a temple. They also resided together as a married couple until the year 2003 and on the basis of the presumption of a validly subsisting marriage, respondent No.2 consented to sexual acts with the appellant on a multitude of occasions.”

Domestic Violence Proceedings

As it turned out, the Bench then enunciates in para 4 laying bare that,

“Thereafter, alleging neglect, respondent No.2 filed M.C. No.3/2008 (re-registered as M.C. No.31/2009) before the Judicial First Class Magistrate Court-IV, Kozhikode under Section 12(1) of the Protection of Women from Domestic Violence Act, 2005 (hereinafter, “DV Act”) seeking arrangement of an alternate accommodation for her along with certain sums of money towards various expenses. In the proceedings before the Magistrate, appellant herein disclosed that he was earlier married with two children and that on 31.08.2009, the aforesaid complaint came to be dismissed. The criminal appeal filed against the said order of dismissal also came to be dismissed.”

First Criminal Complaint Under the IPC

Do note, the Bench notes in para 5 that,

“Pursuant to this, respondent No.2 filed a private complaint before the Additional Chief Magistrate, Thalassery under Sections 376, 420, 493, 494 and 495 of the Indian Penal Code, 1860 (hereinafter, “IPC”) against the appellant, alleging that she had been deceived by the appellant who had claimed to be a bachelor and had married her and that she had consented to physical relationship on the basis of the said presumption (when he was in fact already married to someone else). On 04.04.2011, the said complaint came to be dismissed for non-prosecution. A revision petition filed against the said order of dismissal is pending.”

Second Criminal Complaint and Police Investigation

Do also note, the Bench then notes in para 6 that,

“Respondent No.2 proceeded to file a second private complaint before the Additional Chief Judicial Magistrate, Thalassery under Sections 376, 420, 493, 494 and 495 of the IPC, containing similar allegations as raised in the earlier complaint. The said second complaint was referred to the Kadirur Police under Section 156(3) of the Criminal Procedure Code, 1973 (hereinafter, “CrPC”).”

Do further note, the Bench then also notes in para 7 that,

“On receipt of the said complaint, FIR bearing No.503/2011 came to be registered at Kadirur Police Station, Thalassery against the appellant for the offences punishable under Sections 376, 420, 493, 494 and 495 of the IPC.”

Criminal Proceedings Before the Kerala High Court

Application for Quashing of FIR

As a corollary, the Bench then points out in para 8 that,

“Feeling aggrieved, appellant filed Crl. M.C. No.5051/2013 before the Kerala High Court under Section 482 of the CrPC seeking quashing of the FIR No.503/2011 and all subsequent proceedings arising therefrom. On 19.11.2013, the said petition came to be disposed of by a Single Judge of the High Court, with a direction to the Trial Court to dispose of the discharge application filed by the appellant expeditiously.”

Sessions Court Discharge Application

Be it noted, the Bench notes in para 9 that,

“On 09.01.2015, by way of a common order, a discharge petition preferred before the Court of Addl. District and Sessions Judge, Thalassery along with an application challenging the territorial jurisdiction of the Trial Court by the appellant came to be dismissed on the basis of the existence of a prima facie case and sufficient materials to substantiate the allegations made against the appellant. An application filed by the appellant seeking further investigation into the complaint filed by respondent No.2 also came to be dismissed.”

Kerala High Court Order of 21 May 2025

It merits noting that the Bench notes in para 10 that,

“Appellant preferred Crl. R.P. No.295/2015 against the aforesaid common order dated 09.01.2015 and Crl. M.C No.1221/2015 against the order of dismissal of the application seeking further investigation before the Kerala High Court. Both of these were heard and disposed of by way of a common order. By order dated 21.05.2025, the High Court dismissed both Crl. R.P. No.295/2015 and Crl. M.C. No.1221/2015. The High Court upheld the finding of the Trial Court as regards the existence of a prima facie case. That the appellant herein had misrepresented himself to be a bachelor and had induced respondent No.2 to believe that she was in a legally subsisting marriage and to consent to sexual acts on the basis of the said belief. That under Section 376, consent given under a misconception of fact would amount to rape. That the mere factum of continuous cohabitation for six years would not nullify the initial fraudulent inducement. It was observed that the Trial Court’s appreciation of materials such as the statements of respondent No.2 as well as appellant’s legally wedded wife, bank statements, income tax records among other materials supported the case of the prosecution sufficiently. That the request of the appellant for further investigation was merely a delay tactic and was without merit. Finally, that prior proceedings did not act as a bar against the institution of a subsequent complaint and that the High Court had earlier declined to intervene in an application seeking quashing of the FIR.”

Needless to say, the Bench then states in para 11 that,

“Hence, the instant criminal appeals.”

Supreme Court Analysis of Consent and Rape

Allegation of Rape and Misconception of Fact

It cannot be lost sight of that the Bench points out in para 41 that,

“The allegation of rape hinges entirely on respondent No.2’s claim that she consented to the sexual relationship only because she was under a misconception that she had been validly married to and was the legally wedded wife of the appellant. The appellant does not deny existence of such a physical relationship but contends that the same was entirely consensual.”

Knowledge of Existing Marriage and Consensual Relationship

It is worth noting that the Bench notes in para 42 that,

“Respondent No.2 does not also deny the fact that she was made aware of the pre-existing marriage of the appellant within a few months of cohabiting with him from his brother. Considering this, it is untenable and incredulous that she continued to believe herself to be appellant’s legal wife solely on the basis of his alleged oral reassurances to the contrary. The case at hand is evidently one of consensual relationship that perhaps was camouflaged in a marriage for the sake of avoiding scrutiny or stigma, which eventually came to an end. The mere factum of the relationship having turned sour and acrimonious cannot on its own convert earlier incidences of consent to sexual acts into offences of rape. Such a conclusion would be putting the cart before the horse, predicating the prior act of consent on the outcome of the relationship itself into an offence.”

Retrospective Criminalisation of Consensual Relationships

Plainly speaking, the Bench observes in para 43 that,

“We wish to note a worrying trend in recent years wherein consensual relationships that have come to an end are retrospectively combed with a fine tooth so as to identify what can post-facto be construed as violence and sexual assault. There is thus a need to distinguish between an absence of consent in its entirety because of it having been built entirely on a mirage of deceit and falsehood at the outset on the one hand from the experiencing of regret over having consented to past sexual acts, owing to the later demise of the relationship. While the latter scenario is unfortunate, such hindsight on its own cannot constitute a consensual relationship as a crime and set the gears of the criminal justice system into motion in a manner that deprives the accused of his liberty and reputation. In fact, such an approach denudes the man of any agency entirely, as the mere factum of being in a consensual relationship at one point would bind him to it entirely for fear of being accused of rape at a subsequent point in time.”

Physical Intimacy Cannot Be Retrospectively Branded as Rape

It cannot be glossed over that the Bench specifies in para 44 stating that,

“In such a scenario, can it be said that the man had no right to withdraw from the relationship? Can such a decision be termed as deceit or fraud? Clearly not. In such cases, physical intimacy that occurred during the currency of a functioning relationship cannot be retrospectively branded as acts of rape merely because the relationship soured and no longer subsists.”

Supreme Court’s Concerns Over Failed Relationships and Rape Cases

Most alarmingly, the Bench does not hesitate to put forth in para 45 that,

“This Court has time and again witnessed the disturbing trend where failed relationships are being converted into criminal cases. Rape, being a heinous offence, must be reserved for situations where there is real sexual violence, coercion, or manipulation of consent. When every consensual relationship which sours is converted into an accusation of rape, it not only dilutes the gravity of the offence alleged or rather negates the very allegation of crime. It also subjects the accused to irreparable stigma, harassment and injustice. This is not merely a matter of personal dispute. The abuse of the criminal justice process in such cases is a matter of serious concern and must be condemned. Hence, courts would have to view the entire relationship holistically rather than from the perspective of its end.”

Supreme Court’s Caution on Genuine Sexual Assault Cases

Quite significantly, while striking a note of caution, the Bench observes in para 46 that,

“At this juncture, this Court must also sound a note of caution. Rape is an offence that strikes at the core of a woman’s bodily autonomy and dignity. It continues to be heavily underreported and victims are encouraged to choose silence so as to protect their and their family’s honour and reputation over seeking justice. For every case where the provisions related to rape are misused, there are several cases that never see the light of day. We must emphasise that genuine cases must be pursued with vigour where the facts clearly show sexual assault and violence. But equally, the justice system must not be turned into a tool of vengeance when relationships fail. The legislature has never intended that consensual sexual acts between adults occurring during a mutually affectionate relationship, to be retrospectively criminalised merely because the relationship came to an end. It is unfortunate that despite judicial deprecation, this trend is increasing, and it is a matter of concern for the courts as often settlement of disputes comes with huge monetary considerations to be borne by the male accused.”

Supreme Court’s Final Observations and Reasoning

Continued Cohabitation After Discovery of Existing Marriage

Most significantly, the Bench encapsulates in para 53 what constitutes the cornerstone of this notable judgment postulating precisely that,

“In the facts of the instant case, it is evident that there was continued cohabitation on the part of respondent No.2 even after coming to know of the existence of the appellant’s earlier marriage and having two children. Thus, there is no possibility that respondent No.2 could have been cohabiting on the premise that she was the legally wedded wife of the appellant. The mere alleged performance of some rituals at a temple per se, in light of having received information regarding the appellant’s earlier marriage, could not have given rise to any assumption of lawful marriage on the part of respondent No.2. She has admitted that having come to know of this information within six months of her cohabitation with the appellant, i.e, in the year 1996 and despite this knowledge, she made no attempt to withdraw from the company of the appellant. This conduct is highly suggestive of the consensual nature of the relationship between the appellant and respondent No.2, that it was not in the nature of any legally recognised marriage. The said relationship subsisted, despite awareness of the appellant’s earlier marriage.”

Judicial Observations on Validity of Marriage and Criminal Offences

It would be worthwhile to note that the Bench notes in para 54 that,

“There is further no material on record to indicate that the appellant deceitfully induced respondent No.2 to marry him on the basis of her being his legally wedded wife. While some rituals are alleged to have taken place at a temple, respondent No.2 has been unable to sufficiently make out a prima facie case that these were in the nature of a bona fide marriage. Most of the materials placed on record, such as signatures on documents relating to IVF treatments, joint bank accounts etc. do not on their own imply the existence of any sort of a marriage, instead they only suggest the existence of a long-standing personal relationship.”

Supreme Court on Sections 494 and 495 of the IPC

Most rationally, the Bench while dwelling on the offences of Section 494 and 495 of IPC points out in para 56 holding that,

“The ingredients of both the aforesaid offences have not been made out in the instant case. The relationship between the appellant and the respondent No.2 was more akin to a domestic relationship, possibly in the nature of a marriage, as opposed to a real marriage in the eyes of law. Respondent No.2, when queried in the proceedings under the DV Act, was entirely unable to recollect the name of the temple in which the marriage had taken place, despite having lived in Mysuru for an extended period of time. While respondent No.2 claims that she was taken to the temple by the appellant and a thali/mangalsutra was tied, there is no further information provided if any other rituals required to make a Hindu marriage valid, had been carried out. The statement of the priest of the temple also merely states that a marriage was performed by him between the appellant and respondent No.2 with no further details being provided. While the aforesaid ceremony may have been carried out with some manner of intention to effectuate a marriage, in the absence of further conclusive evidence, it cannot be said that, prima facie, any valid marriage was in subsistence between the parties. Further, as discussed earlier, respondent No.2 was fully aware of the existence of the appellant’s earlier marriage and having two children. Having been informed by the appellant’s own brother of the same merely six months after the purported “marriage”, she sought not to make any further enquiries and continued to cohabit with the appellant for seven more years.”

Personal Autonomy and the Limits of Criminal Law

Most remarkably, the Bench propounds in para 60 holding explicitly that,

“It is trite to reiterate at this stage that this Court has not been entrusted to pass moral judgement on the varying exercises of free choice, autonomy and agency by individuals in the country. Adult, men and women may freely make decisions that are wise or unwise, prudent or reckless and considerate or callous. These decisions would necessarily be accompanied by consequences, perhaps in the form of undesirable outcomes or unexpected possibilities, some even deeply hurtful. None of this would, however, transform these decisions and their resulting circumstances automatically into criminal offences requiring the intervention of the State apparatus. Criminal law cannot be used as munitions to settle personal scores, exact revenge or coerce an individual to act in any particular way.”

Supreme Court Finds No Prima Facie Case Against the Appellant

Most commendably, the Bench then directs and holds in para 61 that,

“As demonstrated in the above analysis, the facts as they stand, which are not in dispute, indicate that the ingredients of the offences under Sections 376, 420, 493, 494 and 495 of the IPC are not established. Prima facie, we hold that no case is made out against the appellant of having committed the said offences. In our view, the High Court erred in concluding that there was sufficient material to make out a prima facie case against the appellant and therefore, proceeded to dismiss the petitions filed against the order of the Trial Court on a completely misconceived basis.”

Why Continuation of the Prosecution Was Not Justified

Resultantly, the Bench then directs and holds in para 62 that,

“On a careful consideration of the aforementioned facts and judicial dicta, we find that none of the offences alleged against the appellant herein is made out and that it is not at all probable that the appellant herein has committed the said offences. Therefore, the principles elucidated in the judgments of this Court in the cases of Prafulla Kumar Samal and Sajjan Kumar extracted above, squarely apply to the facts of this case. It is neither expedient nor in the interest of justice to permit the present prosecution to continue.”

Trial Court and High Court Should Have Discharged the Appellant

Most strikingly, the Bench while catching the right pulse directs and holds in para 63 that,

“In the circumstances, we find that the Trial Court as well as the High Court ought to have discharged the appellant herein rather than holding that the appellant has to face the trial.”

Supreme Court Sets Aside Orders and Grants Discharge

It would be instructive to note that the Bench then hastens to add in para 64 directing and holding that,

“Consequently, the application filed by the appellant herein seeking discharge is allowed by setting aside the impugned order of the High Court as well as the orders of the Trial Court. The appellant is discharged from the offences alleged against him.”

Supreme Court Allows the Appeals

Finally, the Bench then aptly concludes by directing and holding in para 65 that,

“The appeals are allowed in the aforesaid terms.”

Conclusion: Consensual Relationships and Criminal Liability

In a nutshell, the Apex Court has very rightly concluded in this notable judgment that long standing consensual relationship cannot later be retrospectively branded as rape. It is high time and Centre must amend penal laws to ensure that men are not made to suffer for no fault of theirs. The earlier this is done, the better it shall be! No denying or disputing it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.

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