Consent Given During Prior Sexual Acts Won't Extend To Future Occasions: Punjab And Haryana High Court

The Bench of Justice Vivek Puri further remarked that the withdrawal of the consent for sexual act effectively nullifies the earlier consent and therefore, forcibly sexual intercourse becomes non-consensual attracting the penal provisions of Section 376 IPC.

The Case in brief

A complaint was submitted by the complainant/prosecutrix alleging that she had been working with the petitioner/rape accused and were acquainted with each other. Further, she alleged that the petitioner committed rape upon the complainant on many occasions and threatened to eliminate her in the event she made any complaint.

She also complained of an incident wherein the petitioner forcibly entered the room of her PG, fought, hurled abuses, and gave beatings to her. The petitioner was booked under sections 376, 323, 427, 452, 506, and 509 IPC and later on arrested, and therefore, he moved the court with the instant plea seeking bail.

The counsel for the petitioner contended that there is a delay of 48 days in lodging the FIR, the complainant is a 35 years old divorcee, the case has been got registered with an oblique motive of extortion out of failed love affair.

It was also submitted that both the petitioner and complainant are major, they were in live-in-relationship which is also made out from the photographs placed on record, and the relationship between them was consensual.

Court's observations

At the outset, the Court opined that it may not be appropriate to disbelieve the version of the prosecution at this stage on the score that there is a delay of 48 days in lodging the FIR.

The Court noted that there is a categorical mention in the FIR that the complainant was frightened, under mental stress and the petitioner had also been apologetic for his acts, therefore, the Court said that it cannot be accepted at this stage that a false case has been foisted upon the petitioner as a result of an afterthought.

Further, regarding the argument of the bail applicant that this was a case of consensual relationship and that they were in a live-in-relationship, the Court remarked thus:

"It may be true that the law acknowledges live-in-relationship, but at the same time, it has also to be borne in mind that the law also acknowledges woman's right to have sexual relations. The crime of rape consists of committing a sexual act without consent or against the will of a person. Even on the assumption that if two persons previously had a consensual sexual relationship for any reason whatsoever, the consent of prior sexual acts will not extend to future occasions."

Against this backdrop, the Court held that it cannot be construed as a circumstance to conclude that the accused gets a right to perpetually exploit the prosecutrix.

Regarding the photographs submitted by the bail applicant, the court was of the view that it may be true that the prosecutrix was known to the petitioner, but it cannot be prima facie concluded that the prosecutrix had been a consenting party.

"Though the investigation of the case is complete, challan has been presented, but the charge is yet to be framed and the prosecutrix is yet to be examined… The possibility of an attempt on the part of the petitioner to win over or influence the prosecutrix cannot be ruled out," the Court observed as it denied bail to the applicant.

Case title - NARENDRA SINGH v. STATE OF HARYANA
Case Citation: 2022 LiveLaw (P&H) 10

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