Summary: In Murti Devi & Anr. v Balkar Singh, the Jammu & Kashmir High Court denied maintenance to a woman in a live-in relationship after considering her male-partner’s conviction for the offence of rape. The court observed that claims for maintenance could never occur in such cases as the very existence of a §376 IPC offence implies the absence of a marital relationship. This piece aims to conceptualise non-consensual sexual acts done in live-in relationships, arguing for a shift away from the restrictive approach adopted by the Court in Murti Devi.
In this article, the author critiques the Murti Devi & Anr. v. Balkar Singh judgement that refused to grant maintenance to a woman in a long-term live-in relationship after her partner was convicted of raping her. The piece argues that a relationship a rape-on-promise of marriage claim can arise within a relationship ‘in the nature of marriage,’ and should entitle individuals in such circumstances to be granted maintenance.
In the 2025 judgement Murti Devi & Anr. v Balkar Singh, the Jammu & Kashmir High Court (J&K HC) held that in the case of a live-in relationship where the male-partner has been prosecuted and ultimately convicted for an offence of rape under Section 376 of the Indian Penal Code, 1860 (‘IPC’), it is difficult to hold that he would be liable to pay expenses for the female-partner’s maintenance.
In this case, the petitioner-woman entered into a live-in relationship with the respondent-man under the latter’s allurance and expression of willingness to enter into marriage. This live-in relationship lasted for a period of 10 years during which the couple behaved as husband and wife. In 2016, while still in the live-in relationship, the petitioner became pregnant. The petitioner thereafter asked the respondent to fulfill his promise to contract marriage which he refused. Upon this refusal, the petitioner filed a complaint against him for the offence of rape under Section 376 IPC, and the respondent was convicted.
Later, the petitioner sought interim maintenance under Section 125 Code of Criminal Procedure, 1973 (‘CrPC’) for herself and her child. After a series of appeals, the matter was heard by the J&K HC which allowed the grant of maintenance only for the child and not the petitioner. The court’s rationale for this was that a conviction under Section 376 would imply that the relationship cannot be treated as husband and wife for claiming maintenance.
The present piece aims to evaluate the decision that claims for maintenance can never occur in such cases of live-in relationships as the existence of a Section 376 offence ipso facto implies the absence of a relationship in the nature of marriage. The piece does so by first, examining the categorisation of sexual activity between parties in a live-in relationship. Second, analysing whether claims for maintenance can coexist with convictions for rape against a male-partner.
I. Categorising Consent in Live-in Relationships: Whether unconditional or contingent on the promise of marriage?
Section 125 CrPC allows claims for maintenance to be raised not just by those bound by marriage but also those women who are in a relationship ‘in the nature of marriage.’ The test for a relationship ‘in the nature of marriage’ has been laid down in D. Velusamy v D. Patchaiammal which required the couple to:
- Hold themselves out to society as being akin to spouses,
- Be of legal age to marry.
- Be otherwise qualified to enter into a legal marriage, including being unmarried.
- Have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
Therefore, those live-ins relationships that satisfy this test would entitle the female-partner in it to claim maintenance under Section 125 CrPC.
In the present case, the petitioner and respondent did satisfy the requirements of a relationship ‘in the nature of marriage’ owing to them voluntarily cohabiting for a period of 10 years and being otherwise qualified to enter into legal marriage.
In order to understand the nuance of the rationale adopted by the J&K HC in deciding the status of the partners based on the categorisation of their sexual relations, one must analyse whether sexual acts between partners in such relations would assume the status of acts done ‘during a marriage’ or not.
A. The Marital Rape Exception
Notwithstanding the widespread critique and appeals against it, sexual acts done by a man upon his wife, even if non-consensual, are excluded from the definition of rape because of the second exception to Section 375 IPC.
The relevance of this in the present context is that if live-in relationships are to be read as relationships of marriage in order to fit the definition of a domestic relationship, then the non-consensual act done by the male-partner upon the female-partner would not amount to rape as it would gain the protection of marital rape under Exception 2 of Section 375 IPC.
However, such an interpretation of sexual acts in a live-in relationships to be analogous to those in a marriage would be perverse and myopic. The simple reason for this is that in several cases, live-in relationships serve as the precursor to marriage and/or are entered into under the sole assurance that the relationship would culminate in marriage such as in the J&K HC case.
Given this contextualisation, a better reading of non-consensual sexual acts between live-in partners would be one falling under the ambit of Section 375 IPC.
B. Rape on promise of marriage
The judicially evolved principle is that consent to sexual activities obtained on a false promise of marriage would be no consent in law and would thus amount to rape on a false promise of marriage. While a mere broach of promise to marry would not automatically amount to rape, the test to determine this breach would be to examine whether fraudulent intent to deceive existed at the time of consent. In all of this, there exists a certain burden on the accused to prove that an honest promise was subsequently rendered difficult to fulfill because of unforeseen circumstances.
In the case of a long-term relationship, there is a presumption of valid consent for initiating and maintaining physical relations in the relationship. This presumption is, however, rebuttable and courts have often considered whether physical relations were established solely on the basis of the promise of marriage. In the present case, this presumption is rebutted because the petitioner entered into physical relations and a live-in relationship purely because of the allurement of the respondent that he would contract marriage. Furthermore, there was no evidence indicating any change of circumstance that would have rendered the respondent unable to fulfill the promise of marriage. Therefore, all the sexual acts that occured from the point when the respondent had no intention to fulfill his promise would amount to rape on the promise of marriage under Section 375 IPC.
Having analysed why the facts of the present case better fall under the general provisions of Section 375 IPC than its second exception, in the next section I examine whether a conviction under Section 375 would effectively bar any claim for maintenance.
II. Avenues of Justice: Examining whether Rape Convictions and Maintenance Claims can coexist
The claim for maintenance can be raised by a person who enjoyed the nature of an exclusive partner in a relationship ‘in the nature of marriage.’ Therefore, the basis for such a claim is the existence of a relationship of a marriage or a relationship ‘in the nature of marriage’ such as a long-term relationship. In the present case, the petitioner and the respondent had cohabited for a period of 10 years and held themselves out as husband and wife. There existed a live-in relationship ‘in the nature of marriage.’ Therefore in the present case, a claim for maintenance did exist by virtue of the existence of the relationship ‘in the nature of marriage.’
The basis for punitive action under Section 376 in this case was the vitiation of consent to sexual relations that occured by the breach of the promise to marry. It is to be noted that such consent can be given and breached within the existing framework of a live-in relationship. In other words, if partners cohabited and held themselves out to society akin to a married couple but the basis of such a relationship and the sexual acts arising from it was a promise of marriage, then a breach of this promise would not negate the existence of the relationship ‘in the nature of marriage.’ The sine qua non for the adjudication of entitlement to maintenance was the existence of a relationship ‘in the nature of marriage’ and this maintenance should have been granted independent of whether or not the Section 375 conviction went through.
In conclusion, the J&K HC erred in its rejection of the claim to maintenance. Non-consensual sexual acts done in the course of a relationship ‘in the nature of marriage’ that is entered into on the promise of marriage better fit the definition of rape on the promise of marriage under Section 375 than the marital rape exception. Furthermore, this conceptualisation is relevant because the claim for maintenance arises solely on proving the existence of the relationship and cannot be barred by a conviction under Section 375 IPC.
Short Bio: Diya Ranjith is a second-year law student at the National Law School of India University, Bangalore. She has a keen interest in the field of Criminal Law, Family Law, and Gender Justice.
