World grapples with definition of consensual sex
May 24, 2013
In New Delhi, the Supreme Court said recently that if a man has consensual sex with a woman after promising to marry her, it cannot be termed as rape, if later the marriage does not take place.
In New Delhi, the Supreme Court said recently that if a man has consensual sex with a woman after promising to marry her, it cannot be termed as rape, if later the marriage does not take place.
The court was hearing a case in which an accused was charged with rape after he failed to marry the girl with whom he had consensual sex on the promise of marrying her.
A lower court in Haryana had convicted the accused as having raped because the fundamental factor of consent to that sex (promise of marriage) was violated.
The man had been sentenced to seven years and the High Court in Punjab had concurred with the lower court. However, the man appealed to the Supreme Court in New Delhi.
Last month, a High Court panel led by England and Wales’ most senior judges decreed that a man can be convicted of rape even if the woman agreed to have sex but then violated the terms or limitations put on the sex.
A wife had taken her husband to court claiming he broke their agreement to withdraw and ended up impregnating her. The judges argued that their sex was based on a withdraw condition which the husband refused to do.
They decided it fell within the statutory definition of rape because the conditions of consent to sex were violated.
But in India, the Supreme Court interpreted it differently. “Coerced or misguided, obtained willingly or through deceit.
Consent is an act of reason, accompanied by deliberation, the mind weighing the good and evil on each side,” the Supreme Court said.
“There is a clear distinction between rape and consensual sex and court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception.
There is a distinction between the mere breach of a promise, and not fulfilling a false promise.”
The Supreme Court said the woman was at that time 19 years old and had adequate intelligence and maturity to understand the significance and morality associated with the act she was consenting to.