Only if a woman willingly agrees to have sex with her partner can it be called consensual, says judge.
The Kerala High Court has explained the difference between consensual sex and rape during the hearing of a case. The court has commented that if a woman welcomes the prospect of sex from her partner, only then can it be considered sex by mutual consent. Otherwise it would be classified as rape.
Justice PB Suresh Kumar, referring to a case in the US Supreme Court in 1986 (Meritor Savings Bank vs Vinson), said that it should be the norm for a woman to be on her own willing to have sex. There should be no consent basis for this. This will not protect the rights and sexual equality of women.
The High Court said in its judgment: “In other words, in a country like India which is devoted to gender equality, only such physical relations which are happily welcomed do not violate the rights of the victim. Such a relationship can be accepted by mutual consent.”
Terming rape and sexual assault as crimes against sexual equality, the court referred to the UN declaration of ‘eradication of crime against women’. The High Court said in the Judgment, “It is a social reality that sex as a woman wants can never be called mutual consent. When the sexual interaction is equal, consent is not required and if it is not from both sides, it cannot be equated with consent.”
The High Court ruled by referring to the Supreme Court decisions of 1958 and 2003 (Rao Harnarayan Singh Shivji Singh vs State and Uday vs State of Karnataka). The court gave this order considering the appeal of a 59-year-old man. He is accused of more than once raping a 14-year-old girl living in the neighborhood. The girl also became pregnant. The incident took place in 2009 and the POCSO Act was not in existence at the time. The High Court upheld the verdict on the accused convicted from the lower court. His appeal was dismissed.
Appealing to the High Court, the accused had contended that he had formed a consensual relationship with the victim. She said that the accused had come to her house several times after sex for the first time. The victim said in court that she did so because she feared harm caused to her mother and sister.
-India Legal Bureau