Pre-marital sex not shocking, all cases not rape

The Bombay high court has ruled that every breach of promise to marry is not rape and pre-marital sex between couples is no longer shocking in India's big cities.

The observations came earlier this year during the hearing of an anticipatory bail application filed by a Nashik resident, Rahul Patil, who was booked on charges of cheating and rape following a complaint filed by his former girlfriend Seema Deshmukh.

Seema, who claimed she was pregnant with Rahul's child, said despite promising to marry her, he had married another girl. Rahul claimed the relationship was consensual, and they could not marry as they belonged to different religions. Rahul and Seema, both lawyers, knew each other since 1999 and had a physical relationship since 2006. Seema claimed he had promised to marry her. In 2009, when he said he could not, she had tried to commit suicide. They continued physical relations even after that.

"Nowadays keeping (a) sexual relationship while having an affair or before marriage is not shocking as it was earlier. A couple may decide to experience sex. Today especially in metros like Mumbai and Pune, society is becoming more and more permissive," said Justice Mridula Bhatkar, adding, "Though unlike western countries, we have social taboo and are hesitant to accept free sexual relationship between unmarried couples or youngsters as their basic biological need; the court cannot be oblivious to a fact of changing behavioural norms and patterns between man and woman relationship in society.

The court said a major and educated girl was expected to know the demands of her body and the consequences of sexual relationships, and in a case it would have to be tested independently if her decision to have sex with a man was a conscious one or not.

"Today the law acknowledges live-in relationship(s). The law also acknowledges a woman's right to have sex, a woman's right to be a mother or a woman's right to say no to motherhood. Thus, having sexual relationship with a man whether is her conscious decision or not is to be tested independently depending on the facts and circumstances of each and every case and no straightjacket formula or any kind of labelling can be adopted," the judge said.

The HC gave examples of what could be an offence under Section 376 of Indian Penal Code relating to rape -- an uneducated poor girl being induced into a sexual relationship after promise of marriage or a man suppressing his first marriage to have sexual relations with a girl.

The court also pointed out that a couple may fall out of love and questioned if the physical relationship they had before could be termed as rape. "A couple in love may be having sexual relationship and realize they are not compatible, and sometimes love between the parties is lost and their relationship dries gradually, then earlier physical contacts cannot be said as rape. A marriage cannot be imposed," said the judge.

The HC said both Rahul and Seema were educated. In 2011, Rahul had filed an affidavit with police that Seema was forcing him to get married and was threatening to commit suicide. They had sexual relations even after this. Seema lodged a complaint of cheating and rape in 2013. "The complainant is an educated girl and it shows it was her conscious decision to keep sexual relations. Prima facie at this stage, possibility of non-committal, consensual relationship cannot be denied," the judge said, while granting anticipatory bail to Rahul.

The HC said if Seema chooses to have the baby, she could adopt legal proceedings against Rahul to secure the child's rights.

(Names of the couple have been changed to protect identity)