It is important to bear in mind that two consenting adults establishing a physical relationship is not a crime, the Delhi High Court said and held that “jilting a lover, however abhorrent it may seem to some, is not an offence punishable under the IPC”.
The court made the observation while upholding the acquittal of man accused of rape by a woman whom he had allegedly promised to marry.
Justice Vibhu Bakhru observed: “As far as consent to engage in a sexual act is concerned, the campaign ‘no means no’, that was initiated in the 1990s, embodies a universally accepted rule. However, there is now wide acceptance to move ahead from the rule to ‘yes means yes’. Thus, unless there is an affirmative, conscious and voluntary consent to engage in sex, the same would constitute an offence.”
The woman had alleged that the accused, in September 2016, raped her at his house and then in a hotel room. “Although he had promised to marry her, he resiled from his promise,” the woman had told police.
The trial court, however, concluded that the “accused cannot be held guilty for not marrying the prosecutrix as the accused and his family were ready for marriage, but the prosecutrix’s family was not willing”. It had also said the woman established a physical relationship with the accused on account of love, and not on promise of marriage.
Challenging the trial court’s July decision to acquit the man, the Delhi government’s prosecution department filed an appeal before the High Court.
Agreeing with the trial court’s findings, Justice Bakhru noted, “In the present case, the prosecutrix appears to have used the allegation of inducement of physical relationship on the promise of marriage, to not only justify her physical relationship with the accused in the past, but also her conduct after the FIR was filed.”
“The prosecutrix had refused an internal medical examination. In her testimony, she explained that she had done so because the accused had contacted her and reiterated his promise to get married to her,” he added.
“Inducement to have a physical relationship by promising marriage must have a clear nexus with the moment… Promise of marriage cannot be held out as an inducement for engaging in sex over a protracted and indefinite period of time…,” the court said.