Can a consensual relationship be treated as de-facto marriage during long cohabitation?
It is with the advent of 21st Century that phrases like consent, relationships, and marriages have been redefined as permission to reach an agreement, togetherness, and matrimonial deadlocks respectively. Consensual relationships are primarily intimate and sexual which gets a new meaning when alleged as ‘rape’ where partners turn into accused and victim even after their cohabitation as a de-facto marriage of being together without being married.
Statement of Facts
In the case of Aloka Kumar v. State of Karnataka & Others the petitioner sought quashing of the charge sheet against him but was rejected by High Court on account of living together with the daughter of respondent for 6 years but backed down on his promise for marriage and thus induced for intercourse rendering it as no free consent on her part.
It was raised that the petitioner committed offence under Section 376 of Indian Penal Code, 1860 which makes rape punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine. It was also raised that on account of long cohabitation even if the relationship is held to be consensual and petitioner is not held liable for the offense alleged, the petitioner can be charged with civil liability treating it as de-facto marriage in term of long cohabitation. This is done to that the girl is not rendered remediless and exploitation if the criminal offense is not made out. The matter has been listed for further consideration on 12th September 2018.
The given case highlights the treatment of consensual relationships as de-facto marriage given long cohabitation but what remains unanswered is what exactly a long cohabitation is. The idea behind this treatment is not to let the girl remediless which is flawed because this gives rise to an un-accruing benefit to the victim and liability to the accused in an activity which she actively partook in. The mental capacity, thinking capacity, and circumstances get irrelevant importance making the consensual intercourse into a unilateral one to fit in the ideal definition of ‘rape’ for remedy.
(This article was submitted by Gurdas Khurana of Rajiv Gandhi National University Of Law, Punjab, as a part of B&B Associates’ internship program.)