The Supreme Court once again ignited the debate surrounding consent in rape with Chief Justice of India, SA Bobde querying whether sexual intercourse between a lawfully wedded man and wife can be termed as rape.

The Court was hearing the petition of a person accused of rape by a woman with whom he had been in a live-in relationship for over two years. The woman had filed an FIR for rape after he married another woman.

The Allahabad High Court had, in 2019, rejected the plea by the petitioner to quash the FIR. The High Court order was in challenge today before the Supreme Court.

"If a couple is living together as man and wife, the husband may be a brutal man, but can you call the act of sexual intercourse between a lawfully wedded man and wife as rape," CJI Bobde asked.

According to the the complainant, the UP based couple had been in a romantic relationship, but she had "refused to enter into a sexual relationship till marriage".

Her consent was "obtained by fraud" since in February 2014, the couple went to Manali where they performed "marriage rituals at the Hidimba temple," advocate appearing for the woman, submitted.

The man denied that any marriage took place contending that the live-in relationship was a consensual one while the woman maintained that the consent for sexual intercourse was was obtained "by fraud" since she had believed the temple wedding to be a "real marriage."

"Making a false promise of marriage is wrong. No one should falsely promise marriage and break off. But that is different from saying that the act of sexual intercourse is rape," observed the CJI led bench, adding that the top court had "settled the matter" in earlier Judgments.

The woman also raised allegations that the accused man had "brutally exploited" her, and she had to visit a hospital due to injuries caused to her private parts by the man. On another occasion, she had a fractured leg, it was alleged.

"Then you file a case for assault and marital cruelty. Why file a rape case?" questioned the CJI, who also questioned whether the abuse within a "relationship of marriage" could be considered rape.

The Second Exception to Section 375 of the Indian Penal Code stipulates that "sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape".

The accused submitted that the lady had filed such complaints earlier too.

"It's a habitual act of this lady. She had committed this act with two others in office," Makhija argued.

The petition alleged that the woman in question had asked the wife of the accused to "kill him" and that was the only way "she (wife of accused) will be happy in her life."

It was contended that after the man refused to give money to the woman (complainant), she lodged an FIR against him for offences under Sections 376, 504 and 506 of Indian Penal Code.

The Court proceeded to grant protection from arrest to the accused man for four weeks, but declined to pass any orders on his plea to quash the FIR.

"You apply for discharge from the case in the trial court after evidence is collected," commented the Bench.