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In a remarkable judgement, the Kerala High court concluded that alleged surrender or unwelcomed sex cannot be termed as consensual sexual intercourse.
When we talk about sexual intercourse and crimes related to it like rape one thing that is very important is the idea of consent. However, the concept of consent is very vague and is often misinterpreted.
In one such case (as reported in the TOI) the Kerala High Court made a remarkable judgement while upholding the conviction of a man in a rape case. The Kerala High Court said that “sexual intercourse between a man and a woman can be construed as consensual only if it is ‘welcomed’ by the latter.”
The bench headed by Justice P.B. Suresh Kumar in the order on 29 June 2020 ruled that “In a country like ours committed to gender equality, only sexual intercourse which is welcomed could be construed as not violative of the rights of the victim, and accepted as consensual.”
The High Court was hearing an appeal filed by a 59-year-old man against his conviction in a rape case. He was accused of committing a continuous assault on a minor in February 2009. In his defence, he claimed that the victim had consented to intercourse. The girl, who was 14-year-old then and belonged to a scheduled caste, had also been impregnated by him.
According to the news report, the victim has admitted visiting the accused frequently as and when he desired and had sex with him.
On this, the Judge said that the principle of consent also involves ‘voluntary participation of the woman’. The court also established the fact that consent by a woman is considered to be valid only if she has freely exercised a choice between resistance and assent.
The court judgement stated “In other words, the consent in order to relieve an act of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one’s will or pleasure”
The judge noted that when the person is powerless then they may surrender, but still this cannot be considered as consent.
In this particular case, the judge cited that the girl who was then a minor was also familiar with the man, and hence was powerless in the situation.
This judgement again raises the issue that we need to understand – that there is a big difference between voluntarily having sex and being coerced into having sex with someone. The concept of it being unwelcome is what makes the difference. This word ‘coerced’ suggests succumbing to the favour due to fear of losing an opportunity, or the threat of a career being destroyed hence being powerless.
The judgement raises many valid points about consent. The very fact that the court said that unwelcomed consent and surrender due to powerlessness is not consent is a remarkable statement. But then what about marital rape in which a woman may surrender due to powerlessness?
Marital Rape happens because of a wife’s (actual or perceived) sense of powerlessness, and the sense of authority that our society gives to a husband on the wife. It’s about the notion that a wife is a husband’s property hence she cannot say no to acts of any sexual advancement made by her husband. This also accounts to an act of unwelcomed consent.
The problem over here is that the IPC does not recognise marital rape of a wife younger than the age of consent as an act of criminal offence.
One more reason that marital rape is not considered as a ‘rape’ by our society is becasue gender inequality is deeply embodied in our traditions. The notion that ‘pati is parmeshwar’ (husband is god) hence whatever he does is right forms the reason for women to succumb to marital rape. The idea that a wife is a ‘dasi’ (slave) to his husband and a mere ‘charno ki dhul’ (equivalent to dust) prevents a woman from speaking up against marital rape. So the idea that sexual activity should respect gender equality is something that is merely in papers and not quite evident on the ground level.
In the end, it can be stated that this judgement is definitely a remarkable one. It also shows the amount of sensitivity that legal bodies need to keep while making such judgements. Sensitivity towards the victim’s privacy and life circumstances is very important.
Apart from that this judgement also comes to be a ray of hope in the path of criminalizing marital rape.
Image source: pixabay
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