“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.” (Para 42)
Criminal law has always asked what a person’s mind was at the time of the act. The question has become harder to answer when a relationship that began freely ends in bitterness and one party reinterprets the past in the language of crime. In Santhosh Kumar N.P. v. State-Station House Officer, Kadirur Police & Another (2026 INSC 1179), the Supreme Court had to decide whether a consensual sexual relationship between adults can be treated as rape because it later broke down. Its answer rests on a distinction between consent that was never real and regret that arrives later.
Background and Facts
The complainant, respondent No. 2, had earlier been married to one Divakaran. After their divorce she became acquainted with the appellant, and the acquaintance matured into a personal relationship. She alleged that the appellant represented himself to be a bachelor and offered to marry her. In 1996 the two travelled to Mysuru and, according to her, were married at a temple. They lived together as a couple until 2003. She claimed that, believing the marriage to be valid, she consented to sexual acts with him “on a multitude of occasions”.
The litigation began years after the relationship ended. Alleging neglect, the complainant filed a petition in 2008 under Section 12(1) of the Protection of Women from Domestic Violence Act, 2005, seeking alternate accommodation and monetary relief. In those proceedings the appellant disclosed that he had earlier been married and had two children. The petition was dismissed on 31 August 2009, and an appeal against the dismissal also failed.
The complainant then filed a private complaint under Sections 376, 420, 493, 494 and 495 of the Indian Penal Code, 1860 [Sections 64, 318(4), 81, 82(1), 82(2) of BNS]. It was dismissed for non-prosecution on 4 April 2011, and a revision petition against that dismissal remains pending. She filed a second complaint with similar allegations, which was referred to the Kadirur Police under Section 156(3) of the Code of Criminal Procedure, 1973 [Section 175(3) of BNSS], and FIR No. 503/2011 was registered.
The appellant first approached the Kerala High Court under Section 482 CrPC [Section 528 BNSS]. On 19 November 2013 that petition was disposed of with a direction to the Trial Court to decide his discharge application expeditiously. On 9 January 2015 the Additional District and Sessions Judge, Thalassery, dismissed the discharge application, finding a prima facie case. By its order of 21 May 2025 the High Court dismissed the appellant’s revision petition and his petition challenging the refusal of further investigation. It held that misrepresentation of bachelor status could vitiate consent, that six years of cohabitation did not cure an initial fraudulent inducement, and that the plea for further investigation was a delaying tactic.
The Discharge Standard Under Section 227 CrPC (Section 250 BNSS)
The Court began with the standard, since the case reached it as a challenge to the refusal to discharge. Section 227 CrPC (Section 250 BNSS) requires a judge to discharge the accused where “there is not sufficient ground for proceeding against the accused”. The Court set out the principles from Union of India v. Prafulla Kumar Samal and Sajjan Kumar v. Central Bureau of Investigation.
From those cases the Court drew four propositions. The judge may sift and weigh the evidence, but only to decide whether a prima facie case exists. Grave suspicion that is not properly explained justifies framing a charge. Where two views are possible and one gives rise only to suspicion, as distinct from grave suspicion, discharge is open. And the judge is not a “post office” for the prosecution, though neither may the stage become a mini-trial.
The Court then stated the position in its own words. The exercise is “a limited examination of the material on record,” which “cannot also mean deference to the prosecution’s version of events and must involve the due consideration of other possibilities put forth by the accused”. The inquiry concerns “the probability or likelihood that the offence has been committed,” not proof beyond reasonable doubt.
The Court acknowledged that no precise threshold can be fixed for intermediate cases, since the exercise is “an individuated act of reasoning that may be guided, but not made subject to precise constraints”. This matters for the rest of the judgment. The Court did not weigh the evidence as a trial court would. It held that, even on the prosecution’s own material, the ingredients of the offences were absent.
Distinguishing Consent from Deception
The Court identified the real question: “whether, the appellant established physical relationship with the respondent No.2 that was procured by deception or a false promise”. It noted that the rape allegation “hinges entirely” on the complainant’s claim that she consented only because she believed herself the appellant’s lawfully wedded wife.
On the facts, the Court relied on the complainant’s own position. She did not deny that she learned of the earlier marriage “within a few months of cohabiting with him from his brother.” Given that, the Court found it “untenable and incredulous that she continued to believe herself to be appellant’s legal wife solely on the basis of his alleged oral reassurances to the contrary”. It characterised the relationship as “one of consensual relationship that perhaps was camouflaged in a marriage for the sake of avoiding scrutiny or stigma, which eventually came to an end”.
The Court then separated two situations that are easily confused. Absence of consent “in its entirety because of it having been built entirely on a mirage of deceit and falsehood at the outset” is one. “The experiencing of regret over having consented to past sexual acts, owing to the later demise of the relationship” is the other. The second, it said, however unfortunate, “on its own cannot constitute a consensual relationship as a crime.”
The Court also addressed the position of the accused. A contrary approach, it said, “denudes the man of any agency entirely,” because being in a consensual relationship would bind him to it “for fear of being accused of rape at a subsequent point of time”. Asking whether a man has no right to withdraw from a relationship, and whether withdrawal can be termed deceit or fraud, it answered: “Clearly not”.
Can a Failed Relationship Constitute Rape?
Paragraphs 42 to 48 form the core of the judgment, and the reasoning should be read with its limits in view. The Court did not hold that a relationship that ends can never give rise to a rape charge. It held that the end of a relationship cannot supply the missing element of an offence. Consent given during a functioning relationship does not become non-consent because the relationship later collapses. In the Court’s words, treating it otherwise would be “putting the cart before the horse, predicating the prior act of consent on the outcome of the relationship itself into an offence”.
The Court expressed concern at what it called a “worrying trend” of consensual relationships that “are retrospectively combed with a fine tooth so as to identify what can post-facto be construed as violence and sexual assault”. It insisted that rape “must be reserved for situations where there is real sexual violence, coercion, or manipulation of consent,” and warned that treating every soured relationship as rape “dilutes the gravity of the offence alleged”. The remedy it prescribed is a method: “courts would have to view the entire relationship holistically rather than from the perspective of its end”.
Applying that method, the Court found that “the materials do not support an inference of rape,” that “the acts were not forced,” and that the appellant “merely decided, for reasons best known to him, to withdraw from the relationship.” The repeated sexual acts “were part of the ongoing relationship and cannot be severed from it artificially to bring them under Section 376(2)(n)” [Section 64 (2)(m) BNS].
The Court also read the provision itself. Section 376(2)(n), which punishes rape committed “repeatedly on the same woman,” is aimed at aggravated cases in which the assault occurs at different points of time and is not a continuation of a single transaction. In genuine cases, it observed, “the pattern is usually unmistakable,” typically an initial assault followed by repeated acts “under threat of fear, pressure, captivity, or continued deceit”. The present record showed nothing of that kind.
Examination of the Alleged Offences
The Court held that “the crucial ingredients of the offences under Sections 376, 420, 493, 494 and 495 of the IPC [64, 318(4), 81, 82(1), 82(2) BNS] are entirely absent” and that the probability of their commission was “entirely non-existent”. It then took each provision in turn.
Section 376(2)(n) IPC (Section 64 BNS). For the reasons above, the Court found the ingredients “not made out” and added that allowing the prosecution to continue “would amount to a misuse and abuse of criminal law”.
Section 420 IPC (Section 318 (4) BNS). The Court observed that the key element of cheating under this section is not deceit alone but deceit that induces a person to deliver property or to make, alter or destroy a valuable security. It found “nothing on record whatsoever” to show that the complainant delivered any property or dealt with any valuable security because of the alleged deceit. Even taking her belief in the marriage at face value, nothing suggested it led her to part with property.
Section 493 IPC (Section 81 BNS). The Court listed the constituent elements: the man must use deceit, to convince a woman who is not lawfully married to him, that she is lawfully married to him, and to induce cohabitation or intercourse on that basis. Since the complainant continued to cohabit after learning of the earlier marriage and two children, “there is no possibility that respondent No.2 could have been cohabiting on the premise that she was the legally wedded wife of the appellant” (Para 53). The Court added that her conduct was “highly suggestive of the consensual nature of the relationship” and that it “was not in the nature of any legally recognised marriage.” It also found no prima facie material that the temple rituals amounted to a bona fide marriage. The IVF signatures and joint bank account “only suggest the existence of a long-standing personal relationship”.
Sections 494 and 495 IPC (Section 82 BNS). These provisions require a subsequent marriage that is void by reason of the first spouse’s lifetime, with concealment of the former marriage added in Section 495. The Court found no prima facie proof of a valid marriage. The complainant could not recall the temple’s name despite long residence in Mysuru. The record showed that a thali or mangalsutra was tied but nothing about the other rituals required for a valid Hindu marriage. The priest’s statement was bare. Although the ceremony “may have been carried out with some manner of intention to effectuate a marriage,” the Court held that, in the absence of conclusive evidence, no valid marriage could be said to subsist prima facie. It described the relationship as “more akin to a domestic relationship, possibly in the nature of a marriage, as opposed to a real marriage in the eyes of law.”
The Court also noted the chronology. The relationship ended in 2003, the domestic violence proceedings came in 2008, and two near-identical complaints followed.
Protecting Genuine Victims While Preventing Misuse
A reading of this judgment as hostile to complainants would ignore paragraphs 46, 58 and 59, where the Court takes care to preserve the protective function of the law.
The Court stated that rape “strikes at the core of a woman’s bodily autonomy and dignity,” that it “continues to be heavily underreported,” and that victims are often encouraged “to choose silence so as to protect their and their family’s honour and reputation over seeking justice.” It continued: “For every case where the provisions related to rape are misused, there are several cases that never see the light of day.” Genuine cases “must be pursued with vigour where the facts clearly show sexual assault and violence”. The Court paired this with a warning that the justice system “must not be turned into a tool of vengeance when relationships fail,” and with the statement that 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.”
The Court also recognised, in terms, that deception about marriage can vitiate consent. In a country where social values place a significant premium on marriage, a woman may consent to intimacy because marriage “forms the very substratum of her decision,” making her consent conditional on its validity. 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.” Without that principle, it said, the protection of Section 376 IPC (Section 64 BNS) and Sections 493 to 495 IPC (Sections 81 and 82 BNS) “would be rendered illusory for women who are truly wronged”. It then added the qualification on which this case turned: the principle “must be guided by facts and evidence in each case, and not by mere allegations or moral presumptions.”
The judgment therefore does not exclude rape charges where there is fraudulent inducement. The outcome follows from the Court’s finding that the complainant knew of the earlier marriage within months, and from its reading of the record as a whole.
The Court’s Decision
The Court held that the facts “which are not in dispute” showed that the ingredients of Sections 376, 420, 493, 494 and 495 IPC were not established, and that the High Court had erred in finding a prima facie case, proceeding “on a completely misconceived basis”. Applying Prafulla Kumar Samal and Sajjan Kumar, it found it “not at all probable” that the appellant had committed the offences and held that it was “neither expedient nor in the interest of justice to permit the present prosecution to continue”.
The Court allowed the appeals, set aside the High Court’s order and the Trial Court’s orders, and discharged the appellant from all the offences alleged.
Why the Judgment Matters
The decision does not lay down a rule that failed relationships are beyond the reach of rape law. It relies on a narrower point: consent is judged as it existed when it was given, and the later collapse of a relationship cannot reach back and change it. The Court’s emphasis on viewing the relationship “holistically rather than from the perspective of its end” gives trial courts a working method for such cases. The Court itself applied it at the discharge stage, on the allegations as they stood.
The judgment also affects how Section 227 CrPC (Section 250 BNSS) is used. By requiring due consideration of “other possibilities put forth by the accused,” it confirms that discharge is a real safeguard and not a formality. A court that treats the prosecution’s account as settled has failed to apply the standard the Court restated.
The tension within the judgment is deliberate. In one passage the Court underlines that rape is underreported and that victims are pushed into silence. In another it warns against turning a criminal process into a means of settling personal scores. Both concerns are real, and the Court’s answer to the apparent conflict is close attention to the facts of each case. Where deception about a fundamental fact is shown, the law protects the victim. Where the relationship was known to both parties for what it was, and only its ending produced the allegation, the Court held that “criminal law cannot be used as munitions to settle personal scores, exact revenge or coerce an individual to act in any particular way”.