Section 376(2)(n) IPC Inapplicable When Woman Continues Cohabitation Despite Knowledge Of Partner's Prior Marriage; Accused Entitled To Section 227 CrPC Discharge: Supreme Court

"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," Supreme Court.

NEW DELHI — Observing that consensual sexual intimacy between adults during a functioning relationship cannot be retrospectively branded as rape merely because the relationship later terminated, the Supreme Court on October 30, 2026 discharged a man accused under Sections 376, 420, 493, 494, and 495 of the Indian Penal Code, 1860. A Bench comprising Justice B.V. Nagarathna and Justice R. Mahadevan held that courts must discourage the weaponisation of criminal law in the aftermath of emotional discord, emphasizing that continued cohabitation despite knowledge of a prior marriage wholly demolishes any claim of consent obtained under a misconception of fact.

The complainant alleged that the appellant misrepresented himself as a bachelor, married her at a temple in Mysuru in 1996, and cohabited with her until 2003, during which she consented to sexual intercourse under the belief of a valid marriage. Five years after their separation, following the dismissal of her proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005, she initiated criminal proceedings alleging that she was deceived because the appellant had a subsisting marriage with two children. After the Trial Court and the Kerala High Court refused to discharge the appellant, he approached the Supreme Court seeking discharge under Section 227 of the Code of Criminal Procedure, 1973.

Whether allegations in the FIR and charge-sheet disclosed sufficient material to warrant the continuation of criminal proceedings against the accused under Sections 376(2)(n), 420, 493, 494, and 495 of the IPC, or whether he was entitled to discharge under Section 227 of the CrPC.

Whether a woman’s continued voluntary cohabitation with a man for years after being informed of his pre-existing marriage negates the plea of misconception of fact to sustain a prosecution for rape.

Scope of Judicial Scrutiny at Discharge Stage Under Section 227 CrPC

The Supreme Court reiterated the settled principles governing discharge under Section 227 CrPC as articulated in Union of India v. Prafulla Kumar Samal and Sajjan Kumar v. CBI. The Bench noted that a judge considering discharge does not act merely as a post office or mouthpiece of the prosecution, but must evaluate the broad probabilities of the case, the total effect of the evidence, and any basic infirmities.

The Court held that the evaluation at this threshold stage is directed at determining the probability or likelihood that the offence was committed, rather than proof beyond reasonable doubt. Where the probability of commission is non-existent, continuing the prosecution constitutes an abuse of judicial process.

Ingredients of Section 376(2)(n) IPC Not Attracted to Consensual Relationships

Analyzing Section 376(2)(n) IPC, which penalises repeatedly committing rape on the same woman, the Court observed that the provision is designed for aggravated instances where sexual assault occurs at different points in time under fear, pressure, captivity, or continued deceit. The Bench stressed that genuine offences must be segregated from long-term consensual domestic arrangements.

The Court highlighted that the complainant admittedly became aware of the appellant's subsisting marriage through his brother within months of commencing cohabitation in 1996, yet she voluntarily continued to live with him until 2003. Consequently, her claim that her consent was obtained under a continuing misconception of being his lawfully wedded wife was found to be factually and legally untenable.

Distinction Between Vitiated Consent and Retrospective Regret

The Bench expressed deep concern over the growing trend where failed consensual relationships are retrospectively combed to construe past physical intimacy as sexual assault. The Court held that an adult man cannot be denuded of his agency to withdraw from a relationship out of fear of subsequent rape accusations.

Distinguishing genuine deception from hindsight regret, the Court observed that a failure or demise of a relationship cannot retroactively turn consensual acts into an offence. The Bench cautioned that converting every soured relationship into an accusation of rape dilutes the gravity of heinous sexual offences and subjects the accused to irreparable social stigma and financial extortion.

Absence of Ingredients Under Sections 420, 493, 494, and 495 IPC

Examining the charge under Section 420 IPC, the Supreme Court noted that there was no allegation that the complainant was dishonestly induced to deliver any property or create, alter, or destroy any valuable security defined under Section 30 IPC. The mere assertion of deception regarding marital status without property delivery cannot sustain a cheating charge.

The Court similarly held that the offences under Sections 493, 494, and 495 IPC were wholly unmerited. The complainant failed to substantiate the solemnization of a legally valid Hindu marriage, could not identify the temple where the rituals took place, and continued voluntary cohabitation for seven years despite knowledge of the appellant's first marriage, negating any deceitful inducement of lawful marriage.

Setting aside the common order of the Kerala High Court and the Trial Court, the Supreme Court allowed the appeals and discharged the appellant from all offences under Sections 376, 420, 493, 494, and 495 of the IPC.

Date of Decision: October 30, 2026

SUPREME COURT OF INDIA - REPORTABLE

Bench: Justice B.V. Nagarathna and Justice R. Mahadevan