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In a landmark case that will help rape victims, the Delhi High Court said that the silence of a woman cannot be taken as proof of consensual sexual relations

~By Vinay Vats

Although the #MeToo hashtag has caught on and more and more women are retweeting it, it is debatable whether it will make a dent in the status of women in India. According to the National Crime Records Bureau, 2015, crimes against women increased by 43.2 percent from 2011, with one rape reported every two minutes.

In an attempt to make a distinction between rape and consensual sex, the Delhi High Court in State (NCT Of Delhi) vs Munna @ Rikas & Anr delivered a landmark judgment recently in which it observed that mere silence cannot be taken as proof of consensual sex as the victim had stated she was also being threatened by the accused.

The High Court observed: “The defence taken by the accused that the prosecutrix had consensual sexual relations with him which is pointed out from her silence about the incident, holds no ground as mere silence cannot be taken as proof of consensual sexual relations as she has also stated that she was being threatened by the accused. Thus, any act of sexual intercourse in the absence of consent would amount to an act of rape.”

In this case, the victim said that she had left her home about five to six months ago in 2011 and come to Delhi. On reaching Old Delhi Railway Station, she met Munna and another man, Suman Kumar, and went along with them as they assured her that they would arrange a job for her. Thereafter, Munna took her to Panipat where he confined her in a flat for two-and-a-half months and raped her repeatedly. He also made her consume intoxicating pills and threatened to kill her if she tried to escape. She was then taken to a flat in Noida rented by Kumar and confined there. On April 1, 2011, both the accused brought the victim to a flat in Shastri Park, Delhi, where she was again raped by Munna in the absence of Kumar. The next day, a heated altercation took place between Kumar and Munna when the former objected to the latter trying to rape her. Thereafter, the police was informed. The woman claimed that both of them wanted to sell her into prostitution. After the case was filed, a dispute arose regarding her age as her school records showed that she was 14-15 years, whereas a bone X-ray revealed that she was 16-18 years at the time of the incident.

Dalit organisations staging a protest seeking a CBI inquiry into the rape and murder of a Dalit student in Thiruvananthapuram. Photo: UNI
Dalit organisations staging a protest seeking a CBI inquiry into the rape and murder of a Dalit student in Thiruvananthapuram. Photo: UNI

The bench relied on the State of NCT of Delhi vs Shiva & Ors which stated that if there are two possible opinions in a case, the one that tightens the case against the accused needs to be considered. Hence, her age between 16-18 years was considered. The High Court upheld the decision of a trial court in 2015 to convict Munna and acquitted Kumar as he had not raped her though the prosecution tried to implicate him under common intention.

BREACH OF PROMISE

There have been other cases where rape and consensual sex have been confused either due to lack of evidence or mishandling of it. In Tilak Raj vs State of Himachal Pradesh, a division bench of the Supreme Court held that consensual sex is not rape if it is not done on the pretext of marriage.

However, in Akshay Manoj Jaisinghani vs The State of Maharashtra, the Bombay High Court while granting bail to the accused, observed that a man and woman may genuinely want to marry each other and establish sexual relations but if after sometime they find that they are not compatible, such breach of promise cannot be termed rape.

Similarly, in X vs State NCT OF Delhi & Anr, the Delhi High Court observed that when a consensual relationship does not work out, the woman uses law as a weapon to wreak vengeance. In Krishan vs State of Haryana, a division bench of the Supreme Court held that there is no need to show injuries to establish a rape charge. It will sustain even if there are no injuries.

In all these cases, the question left unanswered is: How to prove consent? The consensus is that if there is consent, there will be no injuries, whereas if there is no consent, then some kind of injury will be present on the victim. In many situations, it is difficult to prove if a rape actually took place or whether consensual sex ended up as rape.

CONFUSING SCENARIO

However, the Supreme Court in State of M.P. vs Madanlal, held that whatever be the circumstances, charges of rape or attempt to rape cannot be compromised even if the parties come to a settlement. It said: “Dignity of a woman is a part of her non-perishable and immortal self   and no one should ever think of painting it in clay.  There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct.”

However, numerous judgments have shown that courts have no uniform practice in this regard and give diametrically opposite rulings in such cases.

In Vikash Kumar @ Sonu vs The State & Anr., the Delhi High Court while relying on Gian Singh vs State of Punjab, observed that FIRs on rape charges cannot be quashed even if the accused marries the victim. On the other hand, the Gauhati High Court in Md. Jahirul Maulana @ Jahirul Islam vs  State of Assam quashed the FIR of rape charges because the accused later married the victim and the parties came to a compromise.

Similarly, the Punjab and Haryana High Court in Dalbir Singh & others vs State of Punjab & another quashed rape charges against all five accused in a case because one of them married the victim. And in Rahul vs State NCT of Delhi, the Delhi High Court reduced the sentence of the rapist of a 14-year-old because he married the victim.

It is up to the judiciary to interpret laws in a manner that doesn’t prejudice anyone. However, in many cases, due to differences in interpretations of statutes, the outcome varies in different courts. These discrepancies need to be weeded out so that justice is delivered to the victims.

—The writer is a Supreme Court advocate

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