INTRODUCTION
Imagine a scenario involving two individuals in an established relationship built on mutual trust, affection, and a shared history. During an intimate encounter, a personal boundary is crossed. One partner explicitly says ‘No’ or perhaps remains silent due to shock or a freeze response. In the aftermath, societal misconceptions or self-doubt often lead the individual to question whether non-consensual sexual acts within an intimate partnership constitute a legal offence.
In contemporary India, interpersonal relationships and social dynamics are evolving rapidly, yet legal awareness surrounding ongoing sexual autonomy remains inconsistent. Statistical and legal reality demonstrates that sexual assault often occurs within intimate relationships, behind closed doors, between individuals who share an established bond.
Navigating the legal parameters of consent within unmarried relationships represents a complex and evolving dimension of Indian criminal jurisprudence. It requires careful examination of where personal relationship dissolution ends and criminal liability begins, as well as how the legal system distinguishes between emotional discord and the infringement of personal autonomy.
THE LEGAL FRAMEWORK: HOW THE LAW DEFINES CONSENT
At its core, the law regarding sexual assault is built on a single, foundational pillar: autonomy. Under Indian law (historically Section 375 of the IPC, and now Section 63 of the Bharatiya Nyaya Sanhita, or BNS), the legal definition of rape hinges entirely on the absence of true, freely given consent.[1]
To understand how the law evaluates intimacy between unmarried partners, we have to break it down into three specific legal concepts.
‘Against her will’ and ‘without her consent’: The law uses two distinct phrases that sound similar but carry vastly different weights in a courtroom:
- Against Her Will: This refers to an active, conscious resistance. It is when a person actively protests, fights back, or verbally scream ‘No,’ but their physical boundaries are violently overridden by force or threat.
- Without Her Consent: Consent isn’t just the absence of a ‘No’; it is the absolute requirement of a ‘Yes.’ A person might freeze out of fear, shock, or emotional manipulation and fail to physically resist. The law explicitly clarifies that a lack of physical resistance does not mean consent. Even when individuals have known each other for years, the Supreme Court of India highlighted in Pramod Suryabhan Pawar v State of Maharashtra that a woman’s consent must be an active, conscious choice.[2] The court emphasised that a history of romantic association doesn’t give a partner a permanent pass; consent must be present during the specific act in question.
Consent under a ‘Misconception of Fact’: Previously, cases involving sexual intercourse obtained through a false promise of marriage were prosecuted under the general rape provision by invoking ‘misconception of fact’. The legislature introduced Section 69 to explicitly criminalise sexual intercourse obtained through ‘deceitful means’, including false promises of marriage, employment, or promotion made without initial intent to fulfil them. The primary rationale is statutory clarity. It separates relationship fraud from traditional rape, recognising that while rape (Section 63 BNS) involves the absence of consent or physical override, Section 69 targets consent obtained through engineered misrepresentation. Unlike Section 63[3], which carries up to life imprisonment, Section 69 carries a maximum penalty of 10 years and a fine.
Illusion of Consent: When you have willingly said ‘Yes’ to someone fifty times in the past, an implicit, toxic assumption of ‘continuous consent’ creeps into the relationship. A victim might rationalise the assault by thinking, “We do this all the time, maybe I just wasn’t in the mood, or maybe I didn’t say ‘No’ loudly enough.’[4] The law draws an uncompromising line here: past intimacy does not buy future access.[5] In State of Uttar Pradesh v Chhoteylal,[6] the Supreme Court affirmed that a woman’s past sexual history or previous intimacy with her partner is entirely irrelevant when determining whether she consented to the specific act in question.
THE “FALSE PROMISE OF MARRIAGE” DOCTRINE
In modern Indian relationships, the legal definition of consent has undergone a massive shift. The Bharatiya Nyaya Sanhita (BNS) introduced Section 69, which explicitly criminalises sexual intercourse obtained through ‘deceitful means,’ including a false promise of marriage made without any intention to fulfil it.[7] This separates relationship fraud from traditional rape provisions.[8]
To prevent the law from criminalising ordinary heartbreaks, the Supreme Court draws a sharp line based on initial intent, guided by distinct landmark rulings:
A False Promise (The Crime): This happens when a partner actively uses marriage as a deceptive tool from day one to override a woman’s boundaries. In Deepak Gulati v State of Haryana, the Supreme Court clarified that if a person has a clear, hidden intention never to marry the victim right from the beginning, any consent obtained through that false assurance is completely void in the eyes of the law.[9]
A Breach of Promise (The Breakup): This covers relationships that genuinely fall apart over time. In Dhruvaram Murlidhar Sonar v State of Maharashtra,[10] the Supreme Court laid down the baseline rule: there is a vital difference between a deliberate promise to deceive and a subsequent breach of a promise that was made in good faith but couldn’t be kept due to life’s circumstances. Similarly, in Sonu v State of Uttar Pradesh,[11] the court reiterated that a couple who stay in a voluntary, long-term relationship cannot suddenly turn a bad breakup into a criminal offence when marriage plans fall through.
Punishment and Nature of Crime: The offence is cognizable, non-bailable, and triable by a Court of Session, having a Punishment of Imprisonment of either description for a term which may extend to ten years, and the offender shall also be liable to a fine.
UNDERSTANDING THE RIGHT TO WITHDRAW CONSENT
A prevalent misconception in interpersonal relationships is that past intimacy creates an ongoing or irrevocable expectation of consent. Legally, consent is act-specific, temporary, and can be withdrawn at any point during an encounter. Consenting to intimacy on one occasion does not waive an individual’s right to withhold or revoke consent in subsequent instances.
The Supreme Court of India reinforced this principle in State of Uttar Pradesh v Chhoteylal,[12] ruling that a woman’s past sexual history or prior intimacy with a partner is irrelevant when determining whether she consented to a specific act. Prior closeness does not grant continuous or implied access to another person’s body.
Consequently, even if an intimate encounter begins consensually, an individual retains the right to withdraw consent at any stage. While overriding a partner’s boundary violates the principle of consent, whether it legally constitutes sexual assault depends on the specific facts of the case and whether the statutory ingredients under the law are satisfied. Under Indian law, submission induced by fear, coercion, or deceit does not constitute valid consent. However, courts evaluate each situation individually based on evidence, intent, and context, rather than applying an automatic rule.
CONCLUSION
The legal definition of consent cannot be dictated by societal expectations or relationship status. For individuals navigating modern relationships, past intimacy or future expectations can never justify overriding present-day non-consent.
With the implementation of the Bharatiya Nyaya Sanhita, Indian criminal jurisprudence shifts its emphasis away from scrutinising a couple’s romantic history toward protecting immediate bodily integrity. The absolute right to withhold or revoke consent remains a foundational aspect of bodily autonomy under constitutional law. Legal progress requires that the justice system focus on safeguarding individual autonomy rather than adjudicating personal relationship failures.
Author(s) Name: Suhani Mehrotra (Shri Ram Swaroop Memorial University, Lucknow)
References:
[1] ‘All You Need To Know About Rape Law In India’ (Pink Legal) <https://pinklegal.in/topics/sexual-harassment/rape.html> accessed 11 July 2026
[2] Pramod Suryanbhan Pawar v State of Maharashtra (2019) 9 SCC 608
[3] Bharatiya Nyaya Sanhita 2023, s 63
[4] Anna E Jaffe et al., ‘Characterizing Sexual Violence in Intimate Relationships: An Examination of Blame Attributions and Rape Acknowledgment’ (2021) 36(1-2) Journal of Interpersonal Violence
<https://pmc.ncbi.nlm.nih.gov/articles/PMC6214786/> accessed 11 July 2026
[5] Ibid
[6] State of Uttar Pradesh v Chhoteylal (2011) 2 SCC 550
[7] Bharatiya Nyaya Sanhita 2023, s 69
[8] All You Need To Know About Rape Law In India (n 1)
[9] Deepak Gulati v State of Haryana AIR 2013 SC 2071
[10] Dhruvaram Murlidhar Sonar v State of Maharashtra (2019) 18 SCC 191
[11] Sonu @ Subhash Kumar v State of Uttar Pradesh (2021) SCC OnLine SC 181
[12] Ibid