If educated and over 18-yrs, woman can’t allege rape after consent: HC

If a woman is educated and above 18 years of age and yet does not exercise her right to say ‘no’ to a sexual relationship, then she cannot later allege rape when the relationship turns sour, the Bombay high court has held.

The court also observed that although “society has taboos around sexual relationships”, yet, if a woman does not say no to a sexual relationship, the same must be considered “consensual”.

The observations came while the court was hearing a plea filed by a 25-year-old man seeking pre-arrest bail. According to his plea, the man was in a year-long relationship with a 24-year-old woman from Goregaon.

The two were also physically intimate and the man had promised to marry her. However, at the end of the year, he could not keep his promise and the two broke up.

Soon after, the woman accused the man of having raped her. She registered an FIR against him with the police on several charges, such as rape, cheating and assault. She alleged that while they were in a relationship, the man would take her to several hotels across the city and force her to have sexual intercourse, all the while assuring that he would marry her.

The woman also alleged that she got pregnant during this period, and the man forced her to undergo an abortion. The woman also said she used to help him financially.

Fearing arrest, the man approached the high court.

The woman’s counsel, meanwhile, opposed the plea, saying the woman had been “wronged and physical relationship on false promise of marriage must be considered as rape”.

But Justice Mridula Bhatkar, presiding over the matter, junked the woman’s plea.

“This cannot be considered as rape. You are a major, educated, and you have a choice of saying no. But if you did not say no at the time, then it will be considered as mutual consent. When the woman is educated and mature, she can say no. When she says yes, then it becomes mutual,” Justice Bhatkar said while granting pre-arrest bail to the man.

She, however, directed him against “contacting or harassing the woman or her family members in any manner”.