The Delhi High Court has said that merely because a woman consents to be in the company of a man, “regardless of for how long”, can never be the basis to infer that she had also consented to “Sexual liaison” with him.
Observing that a distinction needs to be articulated between a prosecutrix “consenting to a situation” vs. “consenting to sexual liaison,” Justice Anu p Jairam Bhambhani said:
“Though it
is universally accepted that consent given under force, coercion or duress is
no consent in law since it is not free or volitional, in many cases it
is necessary to examine consent in a more granular manner, with the
awareness that substantivity of consent may also be vitiated by several other
circumstances that erode the freedom of choice. Several circumstances,
including emotional exploitation, may vitiate the substantivity of consent.”
The court
said 'consent' as opposed to 'compulsion' requires a more nuanced consideration.
"Though
it is universally accepted that consent given under force, coercion or duress
is no consent in law since it is not free or volitional, in many cases
it is necessary to examine consent in a more granular manner, with the awareness
that substantivity of consent may also be vitiated by several other
circumstances that erode the freedom of choice. Several circumstances,
including emotional exploitation, may vitiate the substantivity of
consent," it added.
national by pretending to be a “spiritual guru” who would help her perform the post-demise rituals of her deceased husband.
It is
alleged that the man molested the prosecutrix in a hostel in Delhi in 2019 and
subsequently engaged in “physical liaison” with her in Prayagraj and
Bihar in January and February of 2020.
The FIR was filed in March last year under sections 354 and 376 of Indian Penal Code, 1860 and chargesheet was filed in May 2022.
The counsel
appearing for the petitioner-accused submitted that the prosecutrix was a major
and any physical relations with her were entirely consensul.
It was
contended that the FIR was registered much after the incidents at Delhi and
that neither any complaint nor any effort was made by the prosecutrix to
register any FIR at other places where she was allegedly sexually assaulted.
It was
further submitted that the petitioner in fact guided the prosecutrix through
post demise rituals of her deceased husband.
On the
other hand, the counsel representing the State submitted that only eight out of
the 16 prosecution witnesses have been examined and that one of the
crucial witnesses, a lady who is stated to be the prosecutrix’s friend, is yet
to be examined.
It was also
contended that mere delay in registration of FIR is never fatal and that the
petitioner is a manipulative person, who represented himself to be a
spiritual guru. It was also submitted that the accused “played on the
prosecutrix's vulnerabilities” after the
untimely demise of her husband and this gave an “element of dominance” to him
over the prosecutrix, which he exploited unashamedly.
Perusing
the documents on record, the court noted that though it is nowhere alleged that
the petitioner accused held the prosecutrix hostage or that she was made
to travel with him by use of physical force or restraint, that alone
would not be determinative of the state of
prosecutrix’s mind to say that the alleged sexual liaisons were consensual.
“Though the
first incident of physical relations is alleged to have happened in a hostel in
Delhi itself, the nature of the act alleged in that instance was not
rape, and in any case the prosecutrix's silence in relation to that act cannot
be taken to be a licence for more aggravated sexual liaison, as has been
alleged subsequently,” it said.
The court
observed that merely because the prosecutrix agreed to accompany the petitioner
accused to various holy places for conducting last rites and rituals of
her deceased husband, does not ipso facto, imply that she consented to sexual
relations with him.
“Merely
because a prosecutrix consents to being in the company of a man, regardless of
for how long, can never be the basis to infer that she had also
consented to sexual liaison with the man,” the court said.
Justice
Bhambhani also said that irrespective of whether the prosecutrix and the prime
witness are in India or abroad, the petitioner’s attempt to intimidate
or influence them cannot be ruled out.
“The delay
in registration of the FIR has been sought to be explained on the same basis,
viz. the prosecutrix‟s emotionally vulnerable state, as also the fact
that she was in alien places and environments where she was fearful of
consequences if she had made a police complaint,” the court added.
While
denying regular bail to the petitioner, the court however granted him liberty
to apply afresh for the same relief before the trial court, once the
deposition of all prosecution witnesses is complete.
“Nothing in this order shall be construed as an
expression of opinion on the merits of the pending matter,” it said.
Title:
SANJAY MALIK @ SANT SEVAK
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