CJI Bobde asks if ‘act of sexual intercourse’ between live-in couple can be called rape ‘however brutal the husband is’

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Chief Justice of India SA Bobde on Monday asked if an ‘act of sexual intercourse between two individuals living as ‘husband and wife’ in a live-in relationship could be termed rape. CJI Bobde made the observation while granting protection from arrest to a man, who is being accused by a woman of raping her on the pretext of marriage.

CJI Bobde, according to Livelaw, asked, “When two people are living as husband and wife, however brutal the husband is, can the act of sexual intercourse between them be called rape?” The CJI made the observation after lawyer Aditya Vashisht representing the woman opposed a plea to quash a rape case over a false promise of marriage.

Vashisht informed the bench that the man lived with the woman promising marriage and had inflicted violence on her. The woman’s lawyer even produced medical documents in support of his claims for injuries sustained by the woman.

Lawyer Vibha Dutta Makhija, who was representing the man, said that allegations did not amount to rape, adding that ‘this is the habitual case with lady’ since she had ‘done this with two other people in the office.’

The CJI told Makhija, “You may be having a good case for discharge. Apply for it.” He added, “We are listening to this argument because you are saying it, you know what the courts have said about calling rape victims habitual?’

The CJI advised Makhija to ‘withdraw and apply for discharge after evidence is led.’ “That might give you a surer decision. We are not inclined to entertain 482,” CJI Bobde added.



Makhija, however, said that the man, would continue to live under the fear of arrest. CJI Bobde assured the man’s lawyer that the top court will protect him from arrest till conviction.

The woman’s lawyer opposed the protection from arrest saying that the man had resorted to extorting money and the sexual intercourse between him and the woman was without consent. Modifying the order, CJI Bobde said, “We’ll say there will be a stay of arrest for eight weeks. Let the trial court decide beyond that.”

In 2018, the top court had held in two judgments that it would be tough to categorise sexual intercourse as rape if a woman voluntarily remained in a live-in relationship.