Court not entrusted to pass any moral judgment on free choice of adults: SC

NEW DELHI: The Supreme Court on Friday said it is not entrusted to pass any moral judgment on free choice and autonomy exercised by adults, and they will have to face consequences of their "wise or unwise, prudent or reckless" decisions.

A bench of Justices BV Nagarathna and R Mahadevan said criminal law cannot be used as munitions to settle personal scores, exact revenge or coerce an individual to act in any particular way.

"It is trite to reiterate at this stage that this court has not been entrusted to pass moral judgment on the varying exercises of free choice, autonomy and agency by individuals in the country. Adult men and women may freely make decisions that are wise or unwise, prudent or reckless and considerate or callous," it said.

The bench said, "These decisions would necessarily be accompanied by consequences, perhaps in the form of undesirable outcomes or unexpected possibilities, some even deeply hurtful. None of this would, however, transform these decisions and their resulting circumstances automatically into criminal offences requiring the intervention of the State apparatus."

The top court, which discharged a Kerala-based man of charges of rape and cheating, said the society and courts must discourage the weaponisation of criminal law in the aftermath of an emotional discord between two consenting adults.

The bench found that the woman and the man had a consensual relationship and cohabited as husband and wife from 1996 to 2003, and rape was alleged only after their alliance ended.

It said, "While it is indubitably true that in a country like ours, where social and cultural values place a significant premium on the institution of marriage, a woman may repose complete faith in her partner and consent to physical intimacy on the assurance that such a relationship is either a precursor to a legally and socially sanctioned union or formed on the explicit basis of such a union. Marriage itself then forms the very substratum of her decision to engage in a sexual relationship, making her consent conditional on the belief in its validity."

The bench said it is conceivable that such consent may stand vitiated if it is subsequently revealed that the woman was genuinely kept in the dark entirely about the true nature of her marriage, and that the husband had been married earlier, entirely unknown to her.

"There are certainly such genuine cases where trust is betrayed and dignity is compromised, lest the protective mantle of Section 376 along with Sections 493, 494 and 495 of the IPC would be rendered illusory for women who are truly wronged. However, the application of this principle must be guided by facts and evidence in each case, and not by mere allegations or moral presumptions," it said.

The top court said the legislature has never intended that consensual sexual acts between adults, occurring during a mutually affectionate relationship, to be retrospectively criminalised merely because the relationship came to an end.

"It is unfortunate that despite judicial deprecation, this trend is increasing, and it is a matter of concern for the courts as often settlement of disputes comes with huge monetary considerations to be borne by the male accused," it said.

It discharged Santosh Kumar NP of charges of rape, cheating, breach of trust and other offences, holding that the ingredients of the offences are not established.

"Prima facie, we hold that no case is made out against the appellant of having committed the said offences. In our view, the high court erred in concluding that there was sufficient material to make out a prima facie case against the appellant and therefore, proceeded to dismiss the petitions filed against the order of the trial court on a completely misconceived basis," it said.

The bench said 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," it said.

According to the prosecution, the victim alleged that after concealing an earlier marriage, he effected a second marriage with her and had sexual intercourse with her based on the consent obtained as the outcome of an "illegal marriage" by means of fraud.

The victim alleged that the accused cohabited with her deceitfully, inducing the belief of lawful marriage. He married her while his earlier marriage was subsisting, she alleged.

The woman, who was divorced from an earlier marriage, had alleged rape, cheating and breach of trust by the accused. They cohabited from 1996 till 2003 after getting married at Mysuru, she alleged.