The Delhi High Court has stated that simply because a woman agrees to be in the company of a man, irrespective of the duration of the association, cannot be taken as proof of her willingness to engage in a sexual relationship with him.
Justice Anup Jairam Bhambhani emphasized the need to differentiate between a woman consenting to a particular situation and consenting to a sexual relationship. The judge also noted that although it is universally accepted that consent obtained through force or coercion is not considered valid, in certain cases, consent needs to be examined more closely to ensure it was freely given. The judge further added that consent could be invalidated by factors such as emotional exploitation that compromise an individual’s freedom of choice.
The court recognized that the concept of “consent” is more complex than simply the absence of “compulsion.” While it is generally agreed upon that consent obtained through force, coercion, or duress is not valid in the eyes of the law since it is not given freely, the court noted that in certain situations, a closer examination of consent is necessary. The court acknowledged that the validity of consent can be compromised by various factors that affect an individual’s freedom of choice, including emotional exploitation. Therefore, the court emphasized the need for a more detailed examination of the concept of consent in such cases.
The Delhi High Court made these remarks in a case involving a man who was accused of raping a Czech national. The accused had allegedly pretended to be a “spiritual guru” and had offered to help the victim perform the post-death rituals of her husband. The victim claimed that the accused had molested her in a hostel in Delhi in 2019 and subsequently engaged in sexual relations with her in Prayagraj and Bihar in January and February of 2020. The court denied regular bail to the accused while making these observations.
The FIR in this case was lodged in March of last year, under sections 354 and 376 of the Indian Penal Code, 1860, and the chargesheet was filed in May of 2022. During the hearing, the counsel for the accused argued that the victim was of legal age, and any sexual encounters between the two were entirely consensual. The defense further contended that the FIR was filed long after the incidents in Delhi and that the victim had not made any complaints or attempted to file an FIR in the other locations where she claimed to have been sexually assaulted.
The defense counsel argued that the accused had actually assisted the victim in performing the post-death rituals of her husband. However, the state’s counsel countered that only half of the prosecution’s witnesses had been examined so far and that a key witness, who was a friend of the victim, had yet to be questioned. The state’s counsel also pointed out that the mere delay in filing the FIR was not enough to discredit the victim’s claims. It was argued that the accused had manipulated the victim by posing as a spiritual guru and that he had taken advantage of her vulnerable state after her husband’s death, thereby establishing a position of dominance over her. The state’s counsel maintained that the accused had exploited this dominance to engage in sexual activity with the victim.
After examining the records, the court found that even though there were no allegations of the petitioner accused holding the prosecutrix hostage or using physical force to make her travel with him, that alone would not be enough to determine the prosecutrix’s state of mind, and whether the alleged sexual relationships were consensual.
The court also observed that although the first incident of physical relations allegedly took place in a hostel in Delhi, it was not considered rape. The court further noted that the prosecutrix’s silence on that occasion could not be taken as an invitation for more serious sexual relationships, as was subsequently alleged.
According to the court, the fact that the prosecutrix agreed to travel with the petitioner accused to perform last rites and rituals of her deceased husband does not necessarily imply that she also consented to sexual relations with him.
The court emphasized that simply consenting to be in the company of a man cannot be used as a basis to infer that the woman had also consented to sexual relations with him, regardless of the duration of their association.
Furthermore, the court noted that even if the prosecutrix and the prime witness are located in India or abroad, it is possible that the petitioner attempted to intimidate or influence them.
The court considered the delay in filing the FIR and stated that it was understandable given the emotionally vulnerable state of the prosecutrix and her fear of consequences in unfamiliar places. Despite granting the petitioner accused the freedom to reapply for regular bail before the trial court once all prosecution witnesses are examined, the court clarified that this order should not be construed as an expression of opinion on the merits of the case.
Source: https://www.livelaw.in/news-updates/delhi-high-court-women-consent-man-company-sexual-liaison-223722