Jilting a lover despite sexual relationship, however abhorrent it may seem, is not an offence, the Delhi High Court has observed.
The court further said that now there is wide acceptance to move ahead from the ‘no means no’ rule on sexual consent, to ‘yes means yes’.
The court's observation came while upholding the acquittal of a man in a rape case lodged by a woman whom he had promised to marry.
It dismissed an appeal in the case by the police saying that there was no infirmity in the decision of the trial court to acquit the man.
"Jilting a lover, however abhorrent it may seem to some, is also not an offence punishable under the Indian Penal Code," the court said, adding that "two consenting adults establishing a physical relationship, is not a crime".
It said the woman appeared 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. She had also refused an internal medical examination.
"In so 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: a verbal 'no' is a definite indication of not giving consent to engage in a sexual act."
“There is now wide acceptance to move ahead from the rule of ‘no means no’ to ‘yes means yes’. Thus, unless there is an affirmative, conscious and voluntary consent to engage in sex; the same would constitute an offence.”Justice Vibhu Bakhru
The high court said the woman's claim that her consent was not voluntary but obtained by inducing her on the pretext of a promise to marry, is not established in this case.
It noted that three months after the first alleged incident of rape, the woman had voluntarily checked into a hotel with the man in 2016 and there was no merit in the contention that this act was induced by a promise of marriage.
The court said in certain cases, a promise to marry may induce a party to agree to establish sexual relations, even though such party does not desire to consent to the same.
"Such inducement in a given moment may elicit consent, even though the concerned party may want to say no. Such false inducement given with the intention to exploit the other party would constitute an offence.
"However, it is difficult to accept that continuing with an intimate relationship, which also involves engaging in sexual activity, over a significant period of time, is induced and involuntary, merely on the assertion that the other party has expressed its intention to get married," the judge said.
The woman had lodged an FIR in 2016 alleging rape by the man. She had said she developed a friendship with the man and it turned into a love affair and he had promised to marry her.
In 2016, he invited her to his house to meet his mother but when she reached there, she found out that his mother was not at home and he raped her, she had alleged.
The woman had alleged that three months later, the man took her to a hotel and raped her. Although he had promised to marry her, he refused to tie the nuptial knot.
The woman's parents had deposed before the trial court that they were not agreeable to the marriage of their daughter with the man.
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