A consensual physical relationship following a promise to marry does not constitute rape if the promise was not false from the inception; a subsequent breach of that promise due to unforeseen circumstances or later disputes does not automatically criminalize the act as rape or cheating.

ORDER:

The Criminal Petition has been filed under Sections 480 and 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity ‘the BNSS’), seeking to enlarge the Petitioner/Accused on bail in Crime No.650 of 2025 of P.M.Palem Police Station, Visakhapatnam Commissionerate, registered against the Petitioner/Accused herein for the offences punishable under Sections 318(4) and 69 of the Bharatiya Nyaya Sanhita, 2023 (for brevity ‘the BNS Act’).

Heard the learned counsel for the Petitioner, the learned Assistant Public Prosecutor and the learned Legal Aid Counsel for Respondent No.2. Perused the record.

As seen from the record, on 05.11.2025 at 16.00 hours, the complainant lodged a report stating that she married her distant relative, Indigibilli Santhosh, in the year 2018 at Simhachalam Devasthanam, and that they later obtained a legal divorce in 2022 due to marital disputes, which was not informed to her parents. Thereafter, the accused again approached the complainant with false promises of remarriage, lived with her in a live-in relationship for about one year, and repeatedly postponed the marriage, leading to a complaint before the Mahila Police Station, Visakhapatnam City. During counselling, the accused stated that his parents were unwilling for the marriage, and an unregistered settlement was entered into, wherein the accused paid Rs.4 lakhs to the complainant and agreed not to interfere in her life. In November 2023, when the complainant was planning to marry another person, the accused again approached her with false promises of marriage, induced her to invest Rs.4 lakhs in an SA App assuring high returns, and established physical relations with her. Ultimately, he refused to marry her, thereby cheating her with dishonest intention. The petitioner was sent to judicial custody pursuant to his surrender before the learned Jurisdictional Magistrate on 06.11.2025. He has been in judicial custody for the past 62 days. The petitioner is a permanent resident of Chinthapalem, Kothavalasa, Vizianagaram District. He has a fixed abode. If he is enlarged on bail with some stringent conditions, he may not evade the process of law.

The Hon’ble Apex Court in Amol Bhagwan Nehul v. State of Maharashtra , (MANU/SC/0787/2025) wherein at para No.9 it is held as under:

“9...In our considered view, this is also not a case where there was a false promise to marry to begin with. A consensual relationship turning sour or partners becoming distant cannot be a ground for invoking criminal machinery of the State. Such conduct not only burdens the Courts, but blots the identity of an individual accused of such a heinous offence. This Court has time and again warned against the misuse of the provisions, and has termed it a folly³ to treat each breach of promise to marry as a false promise and prosecute a person for an offence under section 376 IPC”.

In Kunal Chatterjee v. State of West Bengal , (Spl Leave Petition (Crl.) No.7004 of 2025) the Hon’ble Supreme Court held as under:

“We have heard learned counsel for the parties at length. Learned counsel appearing for the State has relied upon the definition of 'Rape' and would argue that the consent given by the minor is no consent and it would still be a rape. In our considered opinion, as regarding the rape being committed by the appellant when the prosecutrix was a minor, there is absolutely no evidence, and definitely no forensic evidence with the prosecution. It is only an allegation in the FIR after more than 03 years, in order to make out a case under the POCSO Act, that such an act of rape was committed three years back when she was a minor. She also categorically states that she consented to the act as there was a promise of marriage by the appellant”.

The Hon’ble Apex Court in Naim Ahmed v. State of (NCT) of Delhi, ((2023) SCC Online SC 89) at para No.21 and 22 it is held as under:

“21... The bone of contention raised on behalf of the respondents is that the prosecutrix