'No' means no even after initial 'yes' in rape case: Punjab and Haryana High Court

Tribune News Service

Saurabh Malik

Chandigarh, January 27

The Punjab and Haryana High Court has made it clear that a “no” means no even if it is after an initial “yes” in a rape case. Justice Vivek Puri asserted prior consent for sexual acts would not extend to future occasions, if two persons were previously involved in a consensual sexual relationship.

Prior sexual consent will not extend

“Even on the assumption that if two persons previously had consensual sexual relationship for any reason whatsoever, the consent of prior sexual acts will not extend to future occasions. It cannot be construed as a circumstance to conclude that the accused gets a right to perpetually exploit the prosecutrix”.

“The withdrawal of the consent effectively nullifies the earlier consent and forcibly sexual intercourse becomes non-consensual, attracting the penal provisions of Section 376 of the Indian Penal Code,” Justice Puri asserted.

The ruling came in a case where the accused made attempts to build up a case of “consensual relationship” and claimed he was in a live-in-relationship with the complainant — a 35-year-old divorcee. His counsel argued the case was registered with in “oblique motive of extortion out of a failed love affair”. In an attempt to buttress his contentions, the petitioner-accused placed on record certain photographs.

Justice Puri asserted it may be true that the law acknowledged live-in-relationship. But it was, at the same time, required to be borne in mind that the law also acknowledged a woman’s right to have sexual relationship.

The crime of rape consisted of committing sexual act without consent or against a person’s will. “Even on the assumption that if two persons previously had consensual sexual relationship for any reason whatsoever, the consent of prior sexual acts will not extend to future occasions. It cannot be construed as a circumstance to conclude that the accused gets a right to perpetually exploit the prosecutrix”.

Referring to the facts of the case in hand, Justice Puri asserted the FIR was silent about any consent at any occasion on the part of prosecutrix. Rather, forcible sexual intercourse was alleged. The photographs may indicate that the prosecutrix was known to the petitioner, but it could not be prima facie concluded that the prosecutrix had been a consenting party.

Justice Puri added the investigation was complete and challan had been presented. But the charge was yet to be framed and the prosecutrix was yet to be examined. The defence version that the prosecutrix was a consenting party could not be accepted at the current stage. It was to be substantiated during the course of trial after the examination of the prosecutrix.

“Although there are observations in the MLR of the prosecutrix that she was in a consensual relationship with the petitioner for past one year, it has also been mentioned that on July 5, 2021, she was physically assaulted and sexually abused. Moreover, the consensual relationship at earlier point of time becomes insignificant in view of the observations already recorded,” Justice Puri ruled, while dismissing the plea.

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