Issue of consent in sexual assault cases needs scrutiny: Delhi high court
New Delhi: The issue of consent needs close scrutiny by constitutional courts for analysis of any sexual assault offences, the Delhi high court said on Monday while upholding the exoneration of a man for allegedly raping a married woman for 12 years and having two children with her
New Delhi: The issue of consent needs close scrutiny by constitutional courts for analysis of any sexual assault offences, the Delhi high court said on Monday while upholding the exoneration of a man for allegedly raping a married woman for 12 years and having two children with her.
“In cases of rape, sexual violence and effective enforcement of sexual assault laws, conceptualisation of definition of sexual consent is of utmost importance so that the delicate balance between rape and consensual sexual sex is fairly arrived at in such complaints and cases. The issue of consent, thus, merits close scrutiny for analysis of sexual assault offences,” Justice Swarna Kanta Sharma said in a judgment.
The judge said, “In cases of rape, consent cannot be said to be inferred or proved by passivity or silence alone from the complainant, however, continuous consent without any whisper of complaint assists the court in consent analysis.”
The court was hearing appeals by the state and the woman against the exoneration of the accused from the charges of rape. It was the woman’s case that she had met the accused during a train journey in 2005, while she was two years into a marriage with her husband.
The complainant contended that the man started visiting her house and one day in November 2005, she was intoxicated at Daya Basti in Delhi at a juice shop while at work, consequently to be raped by the man in her government quarters nearby.
The complaint also alleged that the accused threatened and blackmailed her by showing her obscene photos, adding that he compelled her to establish physical relationships with her till 2017. It was only after the woman narrated the incident to her husband, that an FIR was lodged on their complaint.
The complainant, in her statement, had also said that her son and daughter were born from the physical relationship between her and the accused, following which a DNA test confirmed her submission and the DNA profile of the children matched with that of the accused and the complainant.
The accused, who was married and had five children from his legal marriage, had denied all the charges contending that the relationship between him and the complainant was consensual. A trial court had discharged the accused in June 2018, challenging which the woman and the state had moved to the high court.
Accepting the contention of the accused and upholding the trial court’s judgment, the high court noted that the woman-complainant had admitted that she herself used to go to the official accommodation of the accused at his asking continuously for 12 years.
The court said that it is also not clear as to why she did not inform the family or any other authority that she was being sexually exploited, or “raped” for 12 long years against her consent and she also chose to deliver children fathered by the accused herein.
“It is not a case of a teen-aged girl, an illiterate woman or a person confined after every sexual assault for 12 years. It is rather a case where for every sexual encounter, she had travelled to the house of accused and had thereafter gone back home and had borne two children by such sexual union,” justice Sharma said
“Therefore, the sexual element of the relationship and the assumption of ongoing consent to that sexual element are very material to have come to the conclusion regarding her conscious consent in the present case. In the present case, the petitioner was capable of consciously evaluating the outcome of her consent and the act she was indulging in making her a conscious consenting partner to the sexual relationship,” the court added.
The judge also noted that both the complainant and the accused continued their relationship despite being married to their respective partners, adding that neither did the complainant lodge any complaint with police for 12 years nor did she tell the same to her husband or other family members.
Diminishing the claims made by the complainant that she was intoxicated at a juice shop for the first time in 2005 at Daya Basti, the court said, “The relationship between the parties have taken place admittedly at railway quarters of Daya Basti and railway quarters of Panchkuian Road, which are one of the busiest and most congested places of Delhi, and the quarters are constructed in a manner that it has common passage and are in close vicinity to each other”.
“Someone taking a fully grown woman in unconscious condition in a rickshaw in broad daylight to another busiest place of Delhi i.e. railway quarters, Daya basti, rather raises questions against her story,” the court added.
Justice Sharma noted that the accused continuously kept on visiting the house of the complainant and vice versa which cannot but point out to the express as well as implied consent to the sexual relationship.
“Two children were born from the relationship of the prosecutrix and the accused and even during that period, she lodged no complaint with any authority. The story of the woman of last 12 years of sexual relations against her will, repeatedly at a thickly populated place in Delhi and regarding giving birth to the children of accused and her inaction for 12 long years is unexplained,” the court said.
It asserted that even though the woman states that for 12 years she was being blackmailed as the accused had taken some photographs in his mobile phone, no such photographs or mobile phone had been recovered by the prosecution.
“The facts as revealed clearly portrayed that while on the one hand, she had committed betrayal of faith and sanctity of marriage qua her husband by begetting two children from another man who was legally wedded to another partner, the accused himself was also betraying his own legally wedded partner”.
“Even while she was impregnated twice she did not disclose to her husband that she was pregnant from the accused and she had gone ahead to give birth to his children which was surprisingly not a secret for her as she was still living with her legally wedded husband as she has stated in her statement that she knew that both the children have been fathered by the accused, therefore, she clearly knew that she was conceiving from the accused and not from her legally wedded husband,” the court said.