Rohit Tilak rape charge: Can consensual sex on promise of marriage be rape? | pune news | Hindustan Times
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Rohit Tilak rape charge: Can consensual sex on promise of marriage be rape?

Supreme Court has observed that if a man has consensual sex with a woman with the intention to marry her then it cannot be termed as rape, even though the marriage does not take place

pune Updated: Jul 20, 2017 15:42 IST
HT Correspondent
Rohit Tilak has been accused by this 41-year-old woman of rape on pretext of marriage.
Rohit Tilak has been accused by this 41-year-old woman of rape on pretext of marriage.(HT Photo)

With Lokmanya Tilak’s great grandson Rohit Tilak facing rape charges, it has once again revived the debate of whether consensual sex on the promise of marriage can be called rape or not?

In her complaint, the 41-year-old woman in this case said, “Tilak repeatedly raped her on the pretext of marrying her." The Pune police have booked Tilak under various sections of the Indian Penal Code including section 376 and have launched a probe.

The complainant alleged that she became pregnant and Tilak forced her to abort the child.

There have been various rulings in the past by the Supreme Court and the High Court on the issue. Some of these rulings clearly stated that when two adults enter into a physical relationship on the pretext of marriage, the sexual act cannot be termed as rape.

Recently, the Bombay High Court observed that when two consenting adults “consciously enter into a physical relationship, they are fully aware of the consequences and must bear the same”.

High Court judge Mridula Bhatkar, while discharging Kunal Mandaliya of rape charges, observed that the complainant was above 18-years-old and “educated”.

The judge further observed that the complainant was a “working woman,” and thus, it could be assumed that she “was aware of the consequences of keeping sexual relations with a man”.

The Supreme Court has also observed that if a man has consensual sex with a woman with the intention to marry her then it cannot be termed as rape, even though the marriage does not take place.

The SC observation came in May 2013 while hearing a case in which the suspect was charged with rape after he failed to marry the girl with whom he had consensual sex on the promise of marrying her.

HT spoke to lawyers to understand what the law says.

According to advocate Milind Pawar while the law clearly says that any physical relationship that is not without “free consent” is considered to be rape, there have been numerous rulings by the courts in the recent past questioning the veracity of such complaints.

“On multiple occasions, the high courts and Supreme Court have ruled that consensual relationship by two adults on the pretext of marriage cannot be considered as rape,” said Pawar.

Asim Sarode, human rights activist lawyer, said, “In such cases, it is not right to book a person under rape charges. As the victim knows the law and is of an understandable age. It is not justified for the victim to use a defence of ‘under the pretext of marriage’ as she was fully aware of the sexual relationship she was involved in.”

“Once you have consensual sex you cannot impose or compel the opposite sex for marriage. The police, too, cannot be judgemental. However, today, the police are inclined towards the victim, especially women,” he added.

“However, booking the person under section 376 is not right. Under section 42, the Supreme Court has passed an order where the police has to give 15 days notice to the accused before arrest or booking them. If the accused presents valid clarifications then arrests should be completely avoided,” said Sarode.

Harshad Nimbalkar, advocate and former chairman of the bar council of Maharashtra and Goa said, “Consensual sex is not rape and when both the parties in question are above the age of 18, then, the situation shouldn’t arise. It is for the couple to come to a conclusion without involving others. The laws are already strict and the definition of rape is clear. So, the police should not be in a hurry to book the accused in such an offence. They should clear it from both sides first. The accused should definitely not be booked under rape, yes whether he has to be booked under cheating has to be checked.”