Can’t Assume a Woman Consents To Sex Just Because She Has Said Yes Before: Delhi Court
A Delhi Court has rejected the anticipatory bail plea of Mumbai-based TV news anchor Varun Hiremath, who is accused in a rape case, stating that consent cannot be assumed based on his previous consensual relationship with the complainant.
The case in question involves a 22-year-old woman who alleged that Hiremath had raped her on February 20. Hiremath was named in an FIR under IPC sections 376 (punishment of offense of rape), 342 (punishment for wrongful confinement), and 509 (word, gesture, or act intended to insult the modesty of a woman).
While arguing for Hiremath, the defense counsel highlighted that the woman and Hiremath shared a previous consensual sexual relationship, using WhatsApp and Instagram chats as evidence “to show the love and passion between them for each other.” From there, the defense counsel argued that the woman disrobed herself and consented to sexual acts with the accused. The defense also stated that that the woman bore no marks of resistance on her body, which implied consent.
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However, Special Judge Sanjay Khanagwal disputed that none of these things established consent. “On this point also I am of the view that prosecutrix in her complaint as well as in her statement under Section 164 [of the Criminal Procedure Code] specifically denied that the act was the consented one and she has repeatedly mentioned that despite her resistance and unwillingness, accused kept on doing the same to her and she not able to resist the same as she was fearing of some injuries due to the aggression in the behavior of the accused.”
The Court further added that any evidence of a previous consensual relationship will not make any difference under Section 53A of the Indian Evidence Act, which states that evidence of character or previous sexual experiences is “not relevant in certain cases including the offense under Section 376 (rape).”
The Court added that “… if the woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.”
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