Even a prostitute has the fundamental right as well as the moral and social rights and she is at her liberty to permit a person for sexual intercourse; Allahabad HC

Nobody can commit sexual intercourse even with prostitute under the threat or upon the gun point, said the Court.

Allahabad High Court has recently held that even a prostitute has the fundamental right as well as the moral and social rights and she is at her liberty to permit a person for sexual intercourse and nobody can commit sexual intercourse even with prostitute under the threat or upon the gun point

Justice  Aditya Nath Mittal was considering Appeals challenging the judgement passed by the 5th Additional Sessions Judge, whereby the appellant Sushil has been convicted for the offence punishable under section 366 IPC and 376 IPC for rigorous imprisonment of five years along with fine of Rs.1000/- while the appellant Ram Prakash @ Raja has been convicted for the offence punishable under sections 376/368 IPC to undergo five years imprisonment along with fine of Rs.1000/-.

The Defence of the Accused was that that victim was a consenting party.

The Court held that an inference as to consent can be drawn if only based on evidence or probabilities of the case. Consent is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 I.P.C. refers to the expression "Consent" and describes what not consent is. For the purpose of Section 375, voluntarily participation is required after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.

The Court found that the counsel appearing for the appellant Ram Prakash @ Raja has tried to assassinate the character of the victim in his argument that the victim was a girl of easy virtue, therefore, he has been falsely implicated. From the perusal of the cross-examination conducted at the trial court, it appears that the learned counsel in the Trial Court also tried to assassinate the character of the complainant.

The Court was of the opinion that in the traditional non-permissive bounds of society of India, no girl or woman of self-respect and dignity would depose falsely implicating somebody of ravishing her chastity by sacrificing and jeopardizing her future prospect of getting married with suitable match. Not only she would be sacrificing her future prospect of getting married and having family life, but also would invite the wrath of being ostracized and outcast from the society she belongs to and also from her family circle.

Dismissing the Appeals the Court held as follows;

“The victim in this case is a married lady. In my opinion, every woman has self respect and dignity and the argument of the appellants' counsel that the victim was a lady of bad character has no relevance because there is no evidence in this regard. The appellants were given the opportunity to adduce evidence in their defence but no such evidence has been adduced. It appears that the appellant Ram Prakash @ Raja do not have any regard to the dignity and self-respect of a women. I take worst case of a prostitute. Even if a prostitute lodges a report of rape and her evidence inspires confidence, there is no rule of law that the statement of the prostitute cannot be believed. Even a prostitute has the fundamental right as well as the moral and social rights and she is at her liberty to permit a person for sexual intercourse. Nobody can commit sexual intercourse even with prostitute under the threat or upon the gun point. It is highly painful that the dignity and self respect of victim has unnecessarily been tossed in the trial court as well as before this Court but I am of the opinion that howsoever a girl may be of easy virtue, even she may be a prostitute, no one has the right to commit intercourse with her or to outrage her modesty without her consent provided such consent is not obtained under the threat of weapon or misrepresentation and further provided that she is capable of making consent”.

Read the Judgment here.