Can prolonged consensual intimacy be retroactively treated as repeated rape under Section 376(2)(n) IPC?

 

Summary

Category Data
Court Supreme Court of India
Case Number Crl.A. No.-005001-005001 – 2025
Diary Number 19350/2025
Judge Name HON’BLE MRS. JUSTICE B.V. NAGARATHNA
Bench HON’BLE MRS. JUSTICE B.V. NAGARATHNA; HON’BLE MR. JUSTICE R. MAHADEVAN
Precedent Value Binding authority
Overrules / Affirms Affirms existing precedents
Type of Law Criminal law (sexual offences; inherent powers under BNSS)
Questions of Law Whether multiple consensual sexual encounters over an extended relationship, without deception at inception, can amount to “repeated rape” under Section 376(2)(n) IPC and whether FIR/chargesheet should be quashed under Section 528 BNSS.
Ratio Decidendi The SC held that “repeatedly” under Section 376(2)(n) IPC requires separate acts induced by coercion or deception directly linked to each act; prolonged consensual intimacy without evidence of fraudulent promise at the inception cannot be retroactively vitiated into rape; courts may infer consent from the record; continuation of prosecution in such facts is abuse of process.
Judgments Relied Upon
  • Mahesh Damu Khare v. State of Maharashtra, (2024) 11 SCC 398
  • Prashant v. State of NCT of Delhi, (2025) 5 SCC 764
  • Rajnish Singh v. State of Uttar Pradesh, (2025) 4 SCC 197
  • Ganga Singh v. State of Madhya Pradesh, (2013) 7 SCC 278
  • Deepak Gulati v. State of Haryana, (2013) 7 SCC 675
  • State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335
Logic / Jurisprudence / Authorities Relied Upon by the Court
  • “Repeatedly” contemplates distinct acts over time, not a single transaction
  • Deception must be sole inducement to vitiate consent (Mahesh Damu, Deepak Gulati)
  • Mere breakup of consensual relationship cannot convert consent into rape (Prashant)
  • Long-term willingness precludes vitiation for false promise (Rajnish Singh)
  • Quashing parameters under Section 482 CrPC/528 BNSS per Bhajan Lal
Facts as Summarised by the Court Respondent No.2, still married, met appellant‐advocate in 2022, developed a close relationship over three years, engaging in repeated sexual intercourse with aborted pregnancies; no complaints until appellant refused to pay ₹1.5 lakhs; FIR under Sections 376, 376(2)(n), 507 IPC filed 31.08.2024; High Court refused quashing; SC found consensual relationship.

Practical Impact

Category Impact
Binding On All subordinate courts
Follows
  • Mahesh Damu Khare v. State of Maharashtra
  • Prashant v. State of NCT of Delhi
  • Rajnish Singh v. State of Uttar Pradesh
Distinguishes Ganga Singh v. State of Madhya Pradesh

What’s New / What Lawyers Should Note

  • Section 376(2)(n) IPC demands distinct, separate acts of sexual assault, each linked to coercion or deception.
  • Prolonged consensual intimacy cannot be recharacterised as repeated rape because a promise to marry fails.
  • Courts may infer a defence of consent from the record, even if not expressly pleaded.
  • Delay in FIR and contextual history (e.g., aborted pregnancies, voluntary meetings) are material in quashing petitions.
  • High Court’s refusal to quash on absence of express consent plea is unsustainable when record shows voluntariness.

Summary of Legal Reasoning

  1. Statutory meaning: Section 376(2)(n) IPC enhances punishment for rape “repeatedly” on same woman; “repeatedly” means separate transactions.
  2. Deception test: Following Mahesh Damu and Deepak Gulati, false promise vitiates consent only if it alone induced each act.
  3. Consensual breakup: Per Prashant, a consensual relationship that ends cannot be retroactively branded rape.
  4. Long-term willingness: Rajnish Singh confirms voluntary long-term relationships preclude Section 376 prosecutions without new coercion.
  5. Quashing jurisdiction: Under Section 528 BNSS (in pari materia to Section 482 CrPC, per Bhajan Lal), FIR/chargesheet quashed if allegations, taken at face value, do not prima facie disclose the offence or amount to abuse of process.
  6. Application: Record showed voluntary meetings over three years, no protest or deception at outset, delay in FIR—no prima facie rape; quashed.

Arguments by the Parties

Petitioner (Appellant)

  • No evidence of non-consensual acts; relationship voluntary for three years.
  • Complaint lodged only after ₹1.5 lakhs demand was refused; abuse of process.
  • False implication; no divorce decree in complainant’s prior marriage.

Respondent-State

  • FIR discloses cognisable offences under Sections 376, 376(2)(n), 507 IPC; merits to be tested at trial.
  • Veracity of allegations is not for quashing petition.

Respondent No.2 (via Amicus)

  • Supported State; no fresh merit in appeal.

Factual Background

  1. Respondent No.2, married with minor child, separated from husband, sought maintenance in 2020.
  2. Introduced to appellant, an advocate, in January 2022; over three years they met frequently and engaged in sexual relations leading to pregnancies and abortions.
  3. No complaints or charges until May 2024, when appellant declined a ₹1.5 lakhs demand and threatened the complainant.
  4. FIR No. 294/2024 registered on 31.08.2024 under Sections 376, 376(2)(n), 507 IPC; charge-sheet filed 25.10.2024.
  5. High Court refused quashing; SC allowed quashing under Section 528 BNSS.

Statutory Analysis

  • Section 376 IPC: Defines rape and enhanced punishment under sub-section (2)(n) for repeated offences.
  • Section 90 IPC: Misconception of fact; false promise must directly induce consent at inception.
  • Section 482 CrPC / Section 528 BNSS: Inherent power to quash if allegations don’t prima facie constitute offence or amount to abuse of process (Bhajan Lal parameters).
  • No constitutional provisions invoked.

Procedural Innovations

  • Recognition that consent can be inferred from the FIR and accompanying record, without express plea.
  • Application of Section 528 BNSS to quash prosecutions for sexual offences where prima facie case is absent.

Alert Indicators

  • ✔ Precedent Followed

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