The Supreme Court in a recent case of Deepak Gulati vs. Geeta held : Unless, the motives are malafide on the part of the accused-it’s not rape- if both are majors And mature-it’s a consensual s*x. In the  words of the Supreme Court Bench headed by Justice BS Chauhan and Deepak Mishra:

“Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual s*x and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise.”

Writing the judgment, Justice Chauhan said the court must examine whether promise of marriage was made by the accused at an early stage and whether the consent involved was given after wholly understanding the nature and consequences of s*xual indulgence. “There may be a case where the prosecutrix agrees to have s*xual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused — on account of circumstances which he could not have foreseen, or which were beyond his control — was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.”

Drawing a distinction between rape and consensual s*x, the Bench said: “Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamounts to a serious blow to the supreme honor of a woman, and offends both her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks.”

The Bench said there must be adequate evidence to show that at the relevant time, i.e. at the initial stage itself, the accused had no intention whatsoever of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions was unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term misconception of fact, the fact must have an immediate relevance.”

In this case, appellant Deepak Gulati was charged with rape after he failed to marry Geeta, with whom he had s*x on promise to marry her. A lower court in Haryana convicted him to seven years imprisonment and this was upheld by the Punjab and Haryana High Court.

Allowing the appeal, the Supreme Court said the prosecutrix in this case was 19 years of age and had adequate intelligence and maturity to understand the significance and morality associated with the act she was consenting to. She was conscious of the fact that her marriage might not take place owing to various considerations, including the caste factor. Hence it could not be said that she had not given her consent for having s*x with the appellant, the Bench said and directed that the appellant, who had already served three-year imprisonment, be released.