A Major Woman with Prior Experience in Sex Does Not Resist, It May Not Be Non-Consensual: Orissa High Court  

Recently, the Orissa High Court acquitted a man who was accused of raping his sister-in-law, noting that the woman even being a married adult having prior sexual experience, didn’t show any act of resistance to allegedly forceful act.

A single-Justice bench of Justice Sangam Kumar Sahoo observed that being a married lady who was accustomed to sexual intercourse, the woman could have protested or even tried for resisting the act if she was not agreed on the same.

The judgment stated, “If the victim, who is a grown-up lady and having experience of sex, fails to offer sufficient resistance to the accused who was attempting to have sex with her single-handedly, the Court may find that there was no force or the said act was not against her will.“

The Court kept on clarifying that a mere act of helpless resignation in the face of inevitable compulsion, acquiescence, non-resistance or passive giving in, when volition is either clouded by fear or vitiated by duress, cannot be deemed to be consent.

If the act took place without her consent, there would have been some injuries on her body as well as on the body of the accused, since it was alleged to be forcible intercourse, the Court said.

In the case, the Court found that the resistance on the woman’s part seemed to be missing.

The Court went on to say, “The evidence on record indicates that in order to save her own skin, the victim manipulated the occurrence as if the appellant was committing rape on her.“

The woman also alleged that she was compelled to made physical relations with the accused in 2014 while she was passing through a dense forest on her way home.

When she didn’t return home at her usual time, her husband went out to search her and found her in a compromising situation with the appellant in the forest. On seeing her husband, the woman kicked the accused so that he could quickly flee the scene, the Court was told.

Afterward, a first information report (FIR) was lodged. After the completion of the Police Investigation, a trial court eventually found that the man was found to be accused and thus liable for rape under the Indian Penal Code.

After the order, the accused filed an appeal in the High Court.

In its analysis, the High Court noted that the doctor who had performed the medical examination of the woman the next day after the incident affirmed that there were no physical injuries to the body of the lady.

Furthermore, there were also no signs present of recent sexual intercourse, or any other evidence of injuries resulting in bleeding, the Court observed.

The Court found that there was sufficient medical basis for the trial court’s finding that the human semen found on the victim’s clothing did not belong to the accused.

Since the woman didn’t appear to have objected to or opposed the alleged sexual advances by the accused, the Court eventually quash the case against the accused and allow the appeal.

The Court also held, “Since the victim was a consenting party, the conviction of the appellant under section 376(2)(f) of the Indian Penal Code is not sustainable in the eye of the law.“

Advocate Chandan Samantaray presented the accused while Advocate Manoranjan Mishra was present for the State.

Source: https://www.barandbench.com/news/litigation/grown-up-woman-experience-sex-sufficient-resistance-orissa-high-court