Bombay High Court says booking, entering a hotel room does not mean ‘consent for sex’

Justice Deshpande dismissed the Trial Court's order and said that it had “clearly committed an error” by remarking that the victim consented to sex.

In a major ruling, the Bombay High Court at Goa observed that a girl booking and entering a hotel room with a man does not implicate her consent to sexual intercourse.

Bombay HC said the victim's actions right after exiting the hotel room show that she did not consent to any sexual acts.(HT File Photo)

A single-judge bench of the HC led by Justice Bharat Deshpande dismissed a March 2021 order passed by a Margao Trial Court, which discharged a man from rape charges, Live Law reported.

The trial court had remarked that since the girl was involved in booking the hotel room, it meant that she also gave her consent to engaging in the sexual activity that took place in that room. Therefore, the man -- Gulsher Ahmed -- cannot be charged with rape, the court said.

However, the Bombay High Court passed an order on September 3 -- made public just recently -- observed that the Trial Court judge "clearly committed an error" by making such a remark.

'Any stretch of imagination...': HC

In his order, Justice Deshpande wrote, "Drawing such an inference is clearly against the settled proposition and specifically when the complaint was lodged immediately after the incident. Even if it is accepted that the victim went inside the room along with the accused, the same cannot by any stretch of imagination be considered as her consent for sexual intercourse."

The Bombay HC opined that the Trial Court mixed up two aspects in its order -- one is that she went inside the room with the accused of her own will, second is her giving consent for the activity that took place inside the said room.

Justice Deshpande observed that the victim's actions that followed immediately after she exited the room are of great significance, as they indicate that she did not consent to any such sexual act.

"The action on the part of the victim immediately after coming out of the room and that too crying, calling the Police and lodging a complaint on that day itself show that the overt act allegedly carried out in the room by the accused was not consensual," the judge was quoted as saying by Live Law.

Additionally, the HC bench noted that the entire incident was also narrated by the hotel employees.

The accused even argued that the victim had no qualms about booking the hotel room and even had lunch with him before entering the room indicated that she gave consent to sexual intercourse. However, Justice Deshpande junked this submission.

"It is not doubt true that there is material to show that the accused and the victim were instrumental in booking the room, however, that would not be considered as consent given by the victim for the purpose of sexual intercourse," the single-judge bench remarked.

What was the case

The case comes from an incident which took place on March 3, 2020, when the accused promised to get the victim a private job in a foreign country.

He reportedly took her to a hotel in Margao, saying that they would meet an agent for the purpose of the job. This led them to book a hotel room together.

But as per the victim's statement, the accused threatened to kill her soon after they entered room and then raped her. The minute he went to the bathroom, she fled the room and came out running from the hotel, in tears. She then called the police, resulting in the immediate arrest of the accused.

Police booked the Ahmed under Indian Penal Code (IPC) Section 376 (rape) and 506 (criminal intimidation), Bar and Bench reported.

Dismissing the trial court's order, Justice Deshpande has reinstated the trial against the accused.