No Wrongdoing Can Be Attributed To Consensual Sexual Acts Between Adults Regardless Of Their Marital Status: Delhi HC

By any reckoning, it is just not at all affordable especially for those men who face serious rape charges after having consensual sex with a woman for many years to ever dare to even dream to ever gloss over what the Delhi High Court has ruled most explicitly, elegantly, eloquently and effectively that is definitely worth emulating in similar such cases by all the Courts in India in a most learned, laudable, landmark, logical and latest oral judgment titled Sunny Alias Ravi Kumar vs State of NCT of Delhi in Bail Appln. 3580/2023 and cited in Neutral Citation No.: 2024:DHC:3478 that was pronounced as recently as on April 29, 2024 has minced just no words to hold in no uncertain terms that no wrongdoing can be attributed if two consenting adults indulge in consensual sexual activity, regardless of their marital status. We thus see that the Delhi High Court very sagaciously grants bail to a married man in custody on charges of rape. No denying it.

It must be noted here that the Single Judge Bench comprising of Hon’ble Mr Justice Amit Mahajan who has earned laurels and wide acclaim for always delivering his most erudite judgments has been most forthright in holding unambiguously that, “It is apparent that the prosecutrix was meeting the applicant for quite some time before the filing of the complaint and wanted to continue their relationship even after knowing the fact that the applicant is a married man. While societal norms dictate that sexual relations should ideally occur within the confines of marriage, no wrongdoing can be attributed if consensual sexual activity occurs between two consenting adults, regardless of their marital status.” It must be further also noted that the Delhi High Court observed unequivocally that false allegations of sexual misconduct and coercion not only tarnish the reputation of an accused but also undermine the credibility of genuine cases. So it is a no-brainer that the Delhi High Court after perusing very minutely the facts of the case and the material on record very rightly grants bail to the applicant by allowing his bail application.

Bluntly put, why should a men go to jail and be convicted for rape when a adult woman has consensual sexual activity with an adult man for many years or even for many months? Why should women alone be given the liberty to level serious charges of rape on a men after having sex for a pretty long time on one pretext or the other? It is a matter of deep regret that there has been no changes at all made even in the new criminal laws on this count but still Centre can act now and contain the huge damage that an adult man has to suffer after having consensual sex with an adult woman and when on some very petty issues they develop some quarrel and women then goes to court and decides to lodge FIR with most serious charges of rape levelled against a men whose whole life and so also his family’s life goes for a toss! Of course, this is definitely just not done and is totally unacceptable and this is what the Delhi High Court has made it so pretty clear in this notable judgment!

At the very outset, this brief, brilliant, bold and balanced oral judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Amit Mahajan sets the ball in motion by first and foremost putting forth in para 1 that, “The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 (‘CrPC’) seeking grant of regular bail in FIR No. 255/2023 dated 10.03.2023 registered at Police Station Adarsh Nagar for offences under Sections 376/354D/506 the Indian Penal Code,1860 (‘IPC’). Chargesheet has been filed against the applicant.”

To put things in perspective, the Bench envisages in para 2 that, “It is alleged that the applicant used to stalk the prosecutrix and proclaimed that he loved her. It is alleged that after the prosecutrix rejected the advances of the applicant, the applicant threatened her. It is alleged that on 01.12.2021, the applicant called the prosecutrix at GTB Nagar Metro Station. It is alleged that when the prosecutrix reached to meet him, the applicant threatened suicide due to which the prosecutrix agreed to meet him and have regular conversations with him.”

As we see, the Bench then mentions in para 3 that, “It is alleged that in December, 2021, the applicant took the prosecutrix to the house of his friend in Aadarsh Nagar, and forcefully established sexual relations with the her for the first time. It is alleged that the applicant promised to marry the prosecutrix after exiting from there. It is alleged that thereafter, the applicant took the prosecutrix to a Hotel, namely, Welcome Hotel, about 5-6 times, and forced her to have sexual relations with him there.”

While striking the right chord, the Bench after hearing both the sides and perusing the facts and material before it points out in para 12 that, “While considering the application for bail, the Court has to consider the nature of the offence, severity of the punishment and prima facie involvement of the accused. The Court, at this stage, is not required to enter into the detailed analysis of the evidence to establish beyond the reasonable doubt whether the accused has committed offence. It is essential to remember that bail is not a determination of guilt but a safeguard ensuring the accused’s right to liberty pending trial. Moreover, the court should ensure that bail conditions are tailored to address any potential risks while respecting the accused’s rights. By upholding these principles, the court can strike a balance between protecting the interests of the complainant and safeguarding the rights of the accused.”

As it turned out, the Bench then observes in para 13 that, “In the present case, the allegations levelled against the applicant, in a nutshell, are that he had established forceful physical relations with the prosecutrix on multiple occasions on the false pretext of marriage at his friend– Paaji’s house, in Welcome Hotel, Adarsh Nagar and in a hotel at Haridwar over a period of time. It is not denied that the prosecutrix had known the applicant for a long time. The alleged incident is stated to have taken place for the first time in the month of December, 2021, however no complaint was made at the time. Thereafter, the prosecutrix alleges that she succumbed to the entreaties of the accused to have sexual relations with him, on account of the promise to marry, and therefore continued to have sex on several occasions and even then, no complaint was made by her. The prosecutrix further alleged that the accused made forceful relations with her in the month of March, 2023 and subsequently, the FIR was registered on 10.03.2023, that is, almost after fifteen months from the first alleged incident.”

It cannot be lost on us that the Bench while citing the relevant case law pointed out in para 14 that, “The Hon’ble Apex Court, in the case of Meharaj Singh (L/Nk.) v. State of U.P.: (1994) 5 SCC 188, held as under:

“12. ……. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. ……..”.”

Do note, the Bench notes in para 15 that, “It is also relevant to note that no date or time of the alleged incident has been mentioned by the prosecutrix. A bald allegation has been made by the prosecutrix about the physical relations being established by the use of force by the applicant.”

Be it noted, the Bench then notes in para 16 that, “It is relevant to note that the prosecutrix was a major at the time of the alleged incident. Whether the consent of the prosecutrix was vitiated by a misconception of fact arising out of a promise to marry cannot be established at this stage, and the same would be a matter of trial. The averment of the applicant that discrepancies between the FIR and any subsequent statement under Section 164 CrPC may be a defence which is a matter of trial.”

Most significantly, what constitutes the notable cornerstone of this remarkable judgment is then encapsulated in para 17 wherein it is propounded that, “At this stage, no evidence has been brought on record to corroborate that the applicant had made any forceful relation with the prosecutrix or that threats were extended by the applicant to viral her photographs and that the applicant had demanded monies or mobile phones from the prosecutrix. It is apparent that the prosecutrix was meeting the applicant for quite some time before the filing of the complaint and wanted to continue their relationship even after knowing the fact that the applicant is a married man. While societal norms dictate that sexual relations should ideally occur within the confines of marriage, no wrongdoing can be attributed if consensual sexual activity occurs between two consenting adults, regardless of their marital status.”

Equally significant is what is then put forth in para 18 wherein it is postulated that, “The contention of the prosecutrix herself is that the accused had established sexual relationship on the false pretext of marriage even after she came to know about the factum of his subsisting marriage. Her decision to continue with the relationship after coming to know about the same, in view of this Court, prima facie points towards her consent towards maintaining the relationship with the accused despite knowing that he was married.”

It cannot be just glossed over that the Bench points out in para 19 that, “Evidently, the applicant and the prosecutrix were in a relationship for quite some time and enjoyed each other’s company. It is also clear that they had been living as such for quite some time together. It is apparent that the prosecutrix had taken a conscious decision after active application of mind to the things that had happened. Her actions at this stage do not suggest passive acquiescence under psychological duress but rather imply tacit consent, devoid of any misconception.”

What also cannot be lost sight of is that the Bench points out in para 20 that, “It is not in dispute that the offence as alleged is heinous in nature. However, it cannot be lost sight of the fact that the object of jail is not punitive but to secure the presence of the accused during the trial.”

While citing the relevant case law, the Bench points out in para 21 that, “The extant position of law as to when a “promise to marry” is a “false promise” or a “breach of promise” is now settled by the Hon’ble Supreme Court in Pramod Suryabhan Pawar v. State of Maharashtra: (2019) 9 SCC 608, wherein the Supreme Court has expounded the same in the following words:

“18. To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.””

While striking the right chord and for clarity, the Bench clarifies in para 22 that, “However, at the stage of considering bail, it is neither appropriate nor feasible for the court to draw any conclusion, let alone render any finding, as to whether a promise of marriage made to the prosecutrix was false and in bad faith with no intention of being adhered to when it was given. Such determinations must await a comprehensive assessment and evaluation of evidence to be led by the parties at the trial. False allegations of sexual misconduct and coercion not only tarnish the reputation of the accused but also undermine the credibility of genuine cases. Hence, it is imperative for the Court to exercise utmost diligence in evaluating the prima facie allegations against the accused in each case, especially when issues of consent and intent are contentious.”

Furthermore, the Bench specifies in para 23 that, “Further, it is not in dispute that the antecedents of the applicant are clean. The applicant, who is aged about 34 years is in custody since 10.03.2023 and has a wife and two minor children to take care of. Keeping the applicant in jail will not serve any useful purpose.”

As a corollary, the Bench then directs in para 24 that, “In view of the above, the applicant is directed to be released on bail on furnishing a personal bond for a sum of Rs. 25,000/- with two sureties of the like amount, subject to the satisfaction of the learned Trial Court/Duty MM/Link MM, on the following conditions:

a. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or tamper with the evidence of the case, in any manner whatsoever;

b. He shall under no circumstance contact the complainant/other witnesses;

c. The applicant shall under no circumstance travel out of the country without prior permission of the learned trial court;

d. The applicant shall not tamper with evidence nor otherwise indulge in any act or omission that is unlawful or that would prejudice the proceedings in the pending trial;

e. The applicant shall appear before the learned Trial Court as and when directed;

f. The applicant shall neither contact nor interact, whether directly or indirectly, with the prosecutrix or her family, in any manner whatsoever. The petitioner shall also not visit the locality in which the prosecutrix ordinarily resides;

g. The applicant shall provide the address where he would be residing after his release and shall not change the address without informing the concerned IO/ SHO;

h. The applicant shall, upon his release, give his mobile number to the concerned IO/SHO and shall keep his mobile phone active and switched on at all times.”

What’s more, the Bench then specifies in para 25 that, “In the event of there being any FIR/DD entry/complaint lodged against the applicant, it would be open to the State to seek redressal by filing an application seeking cancellation of bail.”

For clarity, the Bench then clarifies in para 26 that, “It is clarified that any observations made in the present order are for the purpose of deciding the present bail application and should not influence the outcome of the Trial and also not be taken as an expression of opinion on the merits of the case.”

Finally, the Bench then aptly concludes by holding in para 27 that, “The bail application is allowed in the aforementioned terms.”

All told, we thus see that much water has already flown under the bridge and at least now it is high time and Centre and our lawmakers must definitely step in and so also take the much needed requisite steps to usher in the much desired reforms in the penal law on this count by decriminalizing consensual sex and inserting most promptly what the Single Judge Bench comprising of Hon’ble Mr Justice Amit Mahajan of the Delhi High Court has ruled so brilliantly succinctly stating so unequivocally that, “No wrongdoing can be attributed if consensual sex activity occurs between two consenting adults regardless of their marital status.” It merits just no reiteration that there can be certainly no more dilly-dallying on this! No denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.