Concerned over the rising trend of filing criminal cases after the failure of relationships, the Supreme Court on Friday said that physical intimacy during good times cannot be branded as rape later just because the alliance soured or broke.

A bench of Justices B V Nagarathna and R Mahdevan, which discharged a Kerala resident man of charges of rape and cheating, said there is a need to distinguish between cases where sexual consent is legally void from the very outset as it was obtained through deliberate deception and fraud, and where a person experiences retrospective regret for past consensual acts simply because of the end of a relationship.

"In such cases, physical intimacy that occurred during the currency of a functioning relationship cannot be retrospectively branded as an act of rape merely because the relationship soured and no longer subsists," the bench said.

Such reflections in hindsight on their own are unfortunate and cannot constitute a consensual relationship as a crime and set the gears of the criminal justice system into motion in a manner that deprives the accused of his liberty and reputation.

"Such an approach denudes the man of any agency entirely as the mere factor of being in a consensual relationship at one point would bind him to it entirely for fear of being accused of rape at a subsequent point of time," the top court said.

"In such a scenario, can it be said that the man has no right to withdraw from the relationship? Can the decision be termed as deceit or fraud? Clearly not," it said.

The court has time and again witnessed the disturbing trend where failed relationships are converted into criminal cases, it added.

Cautioning that the charge of rape, being a heinous offence, must be reserved for situations where there is real sexual violence, coercion or manipulation of consent, the bench said, "When every consensual relationship which sours is converted into an accusation of rape it dilutes the gravity of the offence alleged or rather negates the very allegation of crime." The accused in the case, Santosh Kumar N P, has approached the top court challenging the Kerala High Court dismissing his discharge petition and a plea for quashing of the proceedings against him.

According to the prosecution, the victim has alleged that after concealing an earlier marriage, he had effected a second marriage with her and had sexual intercourse with her based on the consent obtained as the outcome of an "illegal marriage" by means of fraud.

The victim alleged that the accused cohabited with her deceitfully, inducing the belief of lawful marriage. He married her while his earlier marriage was subsisting, she alleged.

The woman, who was divorced from an earlier marriage, had alleged rape, cheating and breach of trust by the accused. They cohabited from 1996 till 2003 after getting married at Mysore, she alleged.