'Woman's Consent To Stay In A Man's Company No Basis To Infer She Also Consented To Sexual Liaison': Delhi High Court

The Delhi High Court has said that merely because a woman consents to be in the company of a man, “regardless of for how long”, can never be the basis to infer that she had also consented to “sexual liaison” with him.

Observing that a distinction needs to be articulated between a prosecutrix “consenting to a situation” vs. “consenting to sexual liaison,” Justice Anup Jairam Bhambhani said:

“Though it is universally accepted that consent given under force, coercion or duress is no consent in law since it is not free or volitional, in many cases it is necessary to examine consent in a more granular manner, with the awareness that substantivity of consent may also be vitiated by several other circumstances that erode the freedom of choice. Several circumstances, including emotional exploitation, may vitiate the substantivity of consent.”

The court said 'consent' as opposed to 'compulsion' requires a more nuanced consideration. 

"Though it is universally accepted that consent given under force, coercion or duress is no consent in law since it is not free or volitional, in many cases it is necessary to examine consent in a more granular manner, with the awareness that substantivity of consent may also be vitiated by several other circumstances that erode the freedom of choice. Several circumstances, including emotional exploitation, may vitiate the substantivity of consent," it added.

The court made the observations while denying regular bail to a man accused of raping a Czech national by pretending to be a “spiritual guru” who would help her perform the post-demise rituals of her deceased husband.

It is alleged that the man molested the prosecutrix in a hostel in Delhi in 2019 and subsequently engaged in “physical liaison” with her in Prayagraj and Bihar in January and February of 2020.

The FIR was filed in March last year under sections 354 and 376 of Indian Penal Code, 1860 and chargesheet was filed in May 2022.

The counsel appearing for the petitioner-accused submitted that the prosecutrix was a major and any physical relations with her were entirely consensual.

It was contended that the FIR was registered much after the incidents at Delhi and that neither any complaint nor any effort was made by the prosecutrix to register any FIR at other places where she was allegedly sexually assaulted. 

It was further submitted that the petitioner in fact guided the prosecutrix through post demise rituals of her deceased husband.

On the other hand, the counsel representing the State submitted that only eight out of the 16 prosecution witnesses have been examined and that one of the crucial witnesses, a lady who is stated to be the prosecutrix’s friend, is yet to be examined.

It was also contended that mere delay in registration of FIR is never fatal and that the petitioner is a manipulative person, who represented himself to be a spiritual guru. It was also submitted that the accused “played on the prosecutrix's vulnerabilities” after the untimely demise of her husband and this gave an “element of dominance” to him over the prosecutrix, which he exploited unashamedly.

Perusing the documents on record, the court noted that though it is nowhere alleged that the petitioner accused held the prosecutrix hostage or that she was made to travel with him by use of physical force or restraint, that alone would not be determinative of the state of prosecutrix’s mind to say that the alleged sexual liaisons were consensual.

“Though the first incident of physical relations is alleged to have happened in a hostel in Delhi itself, the nature of the act alleged in that instance was not rape, and in any case the prosecutrix's silence in relation to that act cannot be taken to be a licence for more aggravated sexual liaison, as has been alleged subsequently,” it said.

The court observed that merely because the prosecutrix agreed to accompany the petitioner accused to various holy places for conducting last rites and rituals of her deceased husband, does not ipso facto, imply that she consented to sexual relations with him.

“Merely because a prosecutrix consents to being in the company of a man, regardless of for how long, can never be the basis to infer that she had also consented to sexual liaison with the man,” the court said.

Justice Bhambhani also said that irrespective of whether the prosecutrix and the prime witness are in India or abroad, the petitioner’s attempt to intimidate or influence them cannot be ruled out.

“The delay in registration of the FIR has been sought to be explained on the same basis, viz. the prosecutrix‟s emotionally vulnerable state, as also the fact that she was in alien places and environments where she was fearful of consequences if she had made a police complaint,” the court added.

While denying regular bail to the petitioner, the court however granted him liberty to apply afresh for the same relief before the trial court, once the deposition of all prosecution witnesses is complete.

“Nothing in this order shall be construed as an expression of opinion on the merits of the pending matter,” it said.

Title: SANJAY MALIK @ SANT SEVAK DAS v. THE STATE & ANR.

Citation: 2023 LiveLaw (Del) 234

Click Here To Read Order