Recently, in a ruling that reinforces the boundaries of sexual consent in law, the Delhi High Court has held that a woman’s friendly relationship or voluntary visit to an accused’s room cannot be construed as consent for sexual intercourse. The Court emphasised that such reasoning is legally untenable and unjustly tarnishes the woman’s character.
Justice Amit Mahajan came in response to a plea filed by a journalist and PhD scholar at Jawaharlal Nehru University (JNU) seeking to expunge adverse observations made by a trial court while granting bail to the man accused of raping her.
The case arose from an FIR registered under Section 64 of the Bharatiya Nyay Sanhita (BNS), in which the complainant alleged that a friend had invited her to his hostel on two occasions and sexually assaulted her.
While granting bail to the accused earlier this year, the Sessions Court had remarked that the woman had visited his hostel of her own accord, continued to remain in touch with him after the alleged incident, and had even planned to meet again, observations that, in effect, implied consent.
Challenging this reasoning, the petitioner contended that such remarks were unwarranted, stigmatizing, and beyond the scope of a bail proceeding.
The Court firmly set aside the remarks, holding that the trial court had misdirected itself by venturing into an assessment of consent at the pre-trial stage.
Justice Mahajan observed, “Concededly, no person has the right to sexually assault the victim for the reason that she voluntarily came to his room. Only because the victim had known the accused or that she was in cordial relations with him will not make her responsible for the sexual assault.”
The Court further held that the trial court’s reasoning cast unwarranted aspersions on the complainant’s moral character and was impermissible in law. “The observations are in the nature of imputing doubts on the character of the victim. The probabilities of the allegations cannot be commented on in this manner as done by the learned ASJ while considering the application for bail,” the Court stated.
Justice Mahajan clarified that consent cannot be inferred from social interaction, cordial relations, or previous familiarity between the parties. He cautioned that such interpretations risk diluting the legal concept of consent and may perpetuate stereotypes inconsistent with the protective intent of sexual offence laws.
The Court thus ordered that the offending remarks in the trial court’s bail order be expunged from the record, noting that they had no bearing on the assessment of bail and served only to prejudice the complainant’s dignity.
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