April 28, 2026

A Child Together Does Not Make Rape Impossible

By Sunil Garodia
First publised on 2026-04-27 07:25:16

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Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack

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When a Supreme Court judge asks, in open court, "She went on to have a child with the man without marriage, and now she is saying rape and assault - what is this?", two things happen simultaneously. The observation makes headlines. And the law gets quietly misrepresented.

The remark was made by Justice BV Nagarathna while hearing a petition filed by a woman who accused her live-in partner of rape, assault, and exploitation, alleging that he had promised to marry her but later abandoned her. The court also noted, more broadly and correctly, that walking out of a live-in relationship does not by itself constitute a criminal offence. That second observation is sound. The first, however, deserves scrutiny - because it conflates relationship history with the specific question of consent.

The Fundamental Principle: Consent Is Transaction-Specific

Under Section 63 of the Bharatiya Nyaya Sanhita (BNS) 2023 - which replaced IPC Section 375 - rape is defined as sexual intercourse without consent or against the will of a woman. The law creates no exception for live-in partners. It makes no distinction based on the duration of the relationship, the depth of intimacy, or whether the couple has children together.

This is deliberate, not an oversight. The law recognises what should be obvious: consent must be free, specific, and contemporaneous to each act. A woman who has been in a consensual relationship for five years, or ten, has not thereby issued a standing authorisation for all future sexual acts. Her consent to yesterday's intimacy says nothing about today's. The moment a partner proceeds without her agreement, the act is rape - regardless of shared history, shared address, or shared children.

Justice Nagarathna's question - "what is this?" - implies that a long-standing relationship and a child make the allegation of rape implausible or incongruent. It does not. It asks the wrong question. The right question is not whether the couple had a consensual relationship in the past. The right question is whether consent was given for the specific act alleged.

The Irony Hidden in Indian Law

There is a bitter irony embedded in the current state of Indian criminal law. A live-in partner has stronger legal protection against forced sex than a legally married wife.

Exception 2 to Section 63 BNS - the marital rape exception, inherited from the colonial IPC and still unreformed - explicitly shields a husband from prosecution if he has non-consensual sex with his wife, provided she is above eighteen years of age. This exception applies only to spouses. It does not extend to live-in partners, girlfriends, or any other category of intimate relationship.

In other words, the law that refuses to recognise rape within marriage recognises it fully within a live-in relationship. A woman cohabiting with a man outside marriage can, at least in principle, prosecute him for rape. Her counterpart in a registered marriage cannot. It is an anomaly that the Supreme Court has itself noted - in the ongoing challenge to the marital rape exception - but which Parliament has yet to address.

What Justice Nagarathna Was Likely Pointing At - And Why the Framing Still Matters

To be fair to Justice Nagarathna, there is a narrower legal context in which the observation makes sense: the sub-question of rape predicated on a false promise of marriage.

Indian courts have, over the years, held that consent obtained through a false promise of marriage can vitiate that consent, making the resulting sexual intercourse rape. However, courts have also held - consistently - that where a relationship is long-standing, fully consensual, involves cohabitation, and produces a child, it becomes difficult to argue that the woman was operating under a continuing misconception about marriage. She could not, the logic goes, have been deceived for that many years about a man's marital intentions while living with him. This weakens the "false promise" theory of the case.

That is a legitimate legal point. But it applies specifically and only to the false-promise ground of complaint. It does not touch allegations of forced sexual acts within the relationship, or of physical assault. A court that narrows a complaint on the false-promise ground has not thereby dismissed the entire case. The observation as reported, however, was not so carefully limited. It sounded - and was heard - as a general scepticism about the possibility of rape within an established cohabiting relationship. That reading is legally wrong and socially dangerous.

Judicial observations carry weight beyond the specific case. When a Supreme Court judge expresses surprise that a woman in a live-in relationship with a child could allege rape, that framing percolates downward - through lower courts, through police stations, through the instinctive responses of families and communities already disposed to dismiss such complaints. The bench's words, even when obiter, become part of the interpretive environment in which these cases are decided.

The Law in Summary

Conclusion

The Supreme Court is entirely correct that exiting a live-in relationship is not a criminal act. Adults who choose to cohabit outside marriage take on certain risks that marriage, with its legal framework and social architecture, mitigates. That is a reasonable observation about the nature of such relationships.

But the absence of marriage does not diminish the right to bodily autonomy within the relationship. A woman in a live-in relationship retains, at all times, the right to refuse sexual contact - and the law backs that right fully. The presence of a child, or ten years of cohabitation, does not extinguish it. Courts, especially the highest court, must be careful to say this clearly, even when they are appropriately sceptical about a particular legal theory advanced in a petition.