Not rape if sex is consensual: Bombay High Court

The Bombay high court on Thursday, while granting anticipatory bail to a man, observed that if a major and educated woman gets into physical relationship with someone and understands its consequences, then it would not fall under the ambit of rape.

Justice Mirdula Bhatkar observed this while hearing a pre-arrest bail application filed by Solapur resident Sumit Patil (25).

Patil had filed the anticipatory bail application through advocate Priyal Sarda, saying that the relationship between the applicant and the complainant was consensual and a case of rape is not made out.

On the other hand, advocate Aniket Nikam on behalf of the 24-year-old complainant alleged before the court that she lives in Mumbai and the accused stays in Solapur and the woman got into relationship because he had promised her that he would marry her. He also said that she would not have got into relationship had he not made the false promise of marriage and hence the case of rape is applicable.

The prosecution’s case is that the accused and the woman met in Solapur in March 2015 and fell in love. The accused promised to marrry her and allegedly forced her to get into a physical relationship and when she conceived, she was made to abort the child and after that the accused refused to marry her and hence she lodged an FIR against him.

The judge, however, clarified that in a similar matter she had taken a view that if an educated woman is mature enough to understand the consequences of having a physical relationship with her partner, then it would not qualify as rape.

The judge said that the victim should have said “No” when she was asked to get into a physical relationship. “I know our society has certain taboos. But if you consider western culture, this is consensual. This is not rape. When the woman is educated and mature she can say no. When you (girl) say yes, it becomes mutual,” observed Justice Bhatkar.