The Patna High Court has clarified that consensual physical relationships between adults, absent a clear promise of marriage, cannot be criminalized as rape under the Bharatiya Nyaya Sanhita, 2023. This order provides critical guidance on distinguishing genuine consent from post-facto allegations in intimate relationships.
Background & Facts
The Dispute
The petitioner, Acchhay Kumar, is accused in PS Case No. 387 of 2025, Rafiganj, Aurangabad, under Sections 69, 351(2), 352, 89 and 3(5) of the Bharatiya Nyaya Sanhita (BNS), 2023. The allegations stem from a relationship with the opposite party, Muskan Kumari, who claims the petitioner induced her into sexual relations under false pretenses and later forced an abortion.
Key Facts
- The petitioner and the informant allegedly began communicating via mobile number 9153451131 on 03.10.2024
- The informant alleges the petitioner approached her under the pretext of discussing the Public Distribution System
- She claims he pressured her for friendship, threatened suicide if rejected, and extracted a condition that he would marry her after his sister’s wedding
- The informant alleges multiple instances of physical relations, including visits to hotels in Gaya
- She claims to have become pregnant in April 2025 and was forcibly administered medicine to terminate the pregnancy
- On 10.07.2025, she alleges the petitioner committed rape at his residence
- No hotel names, medical records, or forensic evidence of pregnancy were mentioned in the FIR
- The informant did not appear before the court despite notice
- The petitioner has no prior criminal record
Procedural History
- 03.10.2024: Alleged initial contact between petitioner and informant
- April 2025: Alleged pregnancy and forced abortion
- 10.07.2025: Alleged rape at petitioner’s residence
- 2025: FIR registered as PS Case No. 387 of 2025, Rafiganj Police Station
- 29.04.2026: Anticipatory bail application filed before Patna High Court
The Parties' Positions
Petitioner’s Position: The relationship was consensual between two adults. There was no promise of marriage. The allegations emerged only after the relationship soured. The FIR lacks corroborative details such as hotel names or medical proof of pregnancy. The petitioner is willing to cooperate with the investigation.
Respondent’s Position: The State opposes bail, arguing the gravity of the allegations under BNS, 2023, particularly Sections 69 (rape) and 3(5) (sexual assault by person in position of trust), warrants denial of anticipatory bail.
Relief Sought
The petitioner seeks anticipatory bail in the event of arrest, with conditions to ensure cooperation with investigation and prevent tampering with evidence.
The Legal Issue
The central question was whether consensual sexual relations between adults, without a clear promise of marriage, can constitute rape under Section 69 of the Bharatiya Nyaya Sanhita, 2023, particularly when the relationship sours and a complaint is filed months later.
Arguments Presented
For the Petitioner
The petitioner’s counsel argued that the relationship was voluntary and ongoing, with no evidence of coercion or deception at the time of intercourse. He cited State of Haryana v. Bhagwan Singh and State of Rajasthan v. Mohan Lal to emphasize that mere breach of promise of marriage does not automatically convert consensual sex into rape. He highlighted the absence of hotel names, medical records, or independent witnesses in the FIR, suggesting fabrication. He submitted that the petitioner has no criminal antecedents and will fully cooperate with the investigation.
For the Respondent
The State’s counsel contended that the allegations under Sections 69 and 3(5) of BNS, 2023, involve serious sexual offenses, including exploitation of trust and forced abortion. He argued that the nature of the allegations, particularly the claim of pregnancy and forced termination, demands strict scrutiny and denial of anticipatory bail to ensure a fair investigation.
The Court's Analysis
The Court examined the factual matrix and found no prima facie evidence of non-consent at the time of sexual intercourse. The Court noted that the informant’s allegations were inconsistent with the timeline and lacked material corroboration. The absence of specific details such as hotel names, medical reports, or witness statements raised serious doubts about the veracity of the complaint.
"The relationship, as alleged, appears to have been between two consenting adults, and the subsequent filing of a criminal complaint after the relationship deteriorated does not, by itself, transform consensual acts into criminal offenses under Section 69 of the BNS."
The Court emphasized that Section 69 of the BNS, 2023, requires proof of lack of consent or exploitation of position of trust, neither of which was substantiated by the FIR. The Court also observed that the informant’s failure to appear despite notice further weakened the prosecution’s case. The Court accepted the petitioner’s assurance of cooperation and noted his clean antecedents.
The Verdict
The petitioner succeeded. The Court granted anticipatory bail to the petitioner, subject to furnishing bail bonds of Rs. 10,000 with two sureties of like amount each. The bail is effective if the petitioner surrenders or is arrested within six weeks from 29.04.2026. The Court directed that if the Investigating Officer files an application alleging non-cooperation, the Trial Court may cancel the bail. A copy of the order was to be sent to Rafiganj Police Station. The petitioner must appear before the investigating officer as and when required.
What This Means For Similar Cases
Consent Without Promise of Marriage Is Not Rape
- Practitioners must distinguish between breach of promise and criminal deception under Section 69 BNS
- Mere sexual relations followed by a complaint after a breakup do not automatically attract rape charges
- Courts must scrutinize the timing, consistency, and corroboration of allegations in consensual relationship cases
FIR Deficiencies Can Undermine Prosecution
- Absence of specific details (e.g., hotel names, medical proof, witness accounts) weakens the prosecution’s case
- Courts may view such omissions as indicative of fabrication, especially in post-breakup complaints
- Defense counsel should highlight these gaps during bail hearings and pre-trial arguments
Cooperation as a Bail Condition Is Binding
- Courts are increasingly conditioning anticipatory bail on active cooperation with investigation
- Non-cooperation, even after bail, can lead to immediate cancellation
- Lawyers must advise clients to maintain a documented record of all interactions with investigating officers
