The High Court said that protection under Section 376 (rape) of IPC is not available to a woman who was not legally entitled to marry the person with whom she was in sexual relationship.

A live-in relationship between two adults who are married may be socially unacceptable but it is not a offence, the Delhi High Court recently held [S Rajadurai v State (NCT) of Delhi & Anr].

In a judgment delivered on September 13, Justice Swarana Kanta Sharma said that moral wrongdoing from the societal perspective and legal criminal wrongdoings are two separate issues, and though some in society may heavily be critical of a live-in relationship between two married individuals, many others may not.

"Live-in relationship between two consenting married adults, who are married to different partners, has not been made criminal or legislated against. While concluding that legal enforcement of morals has not been legislated against, and cannot be a subject matter of any legal morality preached through a judgment (sic)," the Court said.

Hence, though judges might have their own views regarding such relationships, they cannot attach criminality to such acts based on their perceived notions of morality, the Court emphasised.

“It would be a dangerous proposition to attach criminality to acts that have not been legislated against on the basis of perceived morality. Judges, as individuals, may have different notions of morality, which cannot be imposed on any party,” the single-judge stated.

Pertinently, the Court ruled that when a woman is not legally eligible to marry someone due to her existing marriage to another person, she cannot allege rape by claiming that she was induced into a sexual relationship under the false pretext of marriage.

"The protection and remedies available under Section 376 of the IPC cannot be extended to a victim who was not legally entitled to marry the person with whom she was in sexual relationship with. A case can be made out under Section 376 of IPC, if the victim can prove that she was induced into a sexual relationship under false pretext of marriage by the other party being legally eligible to enter into a marriage with such person," the Court underscored.

It opined that individual adults are free to make decisions even though such decisions might not align with societal norms or expectations. However, in such cases, they have to remain ready to face potential consequences of such relationships, the Court said.

It made these observations while dealing with a plea filed by a man seeking the quashing of a first information report (FIR) registered against him for the offence of rape on allegations by a woman that he established sexual relations with her on the false pretext of marriage.

They were stated to be a live-in relationship and both were married.

In his plea as well as written submission seeking the quashing of the FIR, the petitioner used derogatory language against the woman.

Justice Sharma said that such submission falls short of the decency expected in legal pleadings.

“Therefore, this Court is of the opinion that although the immorality of the act on the part of the female partner was argued at length before this Court, the same standard applies to the male partner, and no distinction should be made based on gender, as doing so would perpetuate misogynistic thinking,” the judgment said.

Dealing with the issue of both the parties being married to other people and yet indulging in a live-in relationship, the Court said that an act may be socially unacceptable but it is not a crime.

“Courts of law cannot serve as legal moralists preaching morality. They must critically examine the criminal aspects derived from the facts of each case,” Justice Sharma observed.

The Court was of the view that women can make choices as equals and that these choices must be respected, irrespective of the age-old notion of women carrying the burden of morality on their shoulders.

On the man's plea to quash the FIR, the Court held that when a woman was not legally eligible to marry someone else due to her existing marriage to another partner, she could not claim that she was induced into a sexual relationship under the pretext of marriage.

In the present case, it was evident that the petitioner-man could not have entered into a legal marriage with the complainant and there was no valid basis for the complainant to entertain the notion of a promise of a marriage from him, since she (by virtue of her existing marriage) was ineligible to marry.

Therefore, the Court allowed the man's plea and quashed the FIR.

Advocate S Selva Kumar appeared for the petitioner, S Rajadurai.

Additional Standing Counsel Rupali Bandhopadhya represented the State.

Advocates Varun Kumar, MD Jangra and Shitanshu appeared for the complainant woman.