Man cannot be prosecuted for rape for consensual sex with major woman: SC

New Delhi: A man cannot be prosecuted for rape for being in a sexual relationship with his major woman friend if he intended to marry her but the wedlock could not take place due to some circustances, the Supreme Court today held.

A bench of justices B S Chauhan and Dipak Misra said that a person cannot be accused of rape if the girl agrees to have sexual intercourse with him on account of her love and passion and he did not have any malafide intention.

"The court must examine whether there was made, at an early stage, a false promise of marriage by the accused and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence.

"There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently," the bench said.

It said that there is distinction between rape and consensual sex and "an accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives".