Voluntary sexual act not a rape: HC

PTI, MUMBAI | 12 July 2013 21:22 IST

Acquitting a rape convict, the Bombay High Court has held that it would not amount to rape if the consent of the girl in a sexual relationship with her partner was voluntary.

Hearing an appeal filed by 39-year-old Manesh Kotiyan, Justice Sadhana Jadhav acquitted him of the rape charges three years after he was arrested for the alleged offence.

The court set aside the 7 years Rigorous Imprisonment awarded to Kotiyan on rape charge.

"The complainant here is an educated adult person. The appellant had proposed to her. She was fully aware of the fact that he was attracted to her. She chose to go with him and checked into a hotel to celebrate his birthday. She was aware of the consequences. She had not cried for help and had not taken her resistance to a logical end," the judge said.

"Hence, it would not be justifiable to hold that the consent was obtained by intimidation, force meditated imposition, circumvention surprise or undue influence. Hence, the conviction of appellant for offence punishable under Section 376 of IPC would not be sustainable," observed Justice Jadhav in a recent order.

 "The very fact that the prosecutrix has admitted in the cross-examination that she had a love affair with the accused and she desired to marry him. In these circumstances, offence under Section 376 of the Indian Penal Code would necessarily fail", the judge further observed.

"It cannot be said that the accused had committed sexual intercourse at false promise of marriage. He was willing to marry her. The impediment was the proceedings filed by the first wife of the appellant. Even according to the complainant, the appellant had assured her that he would get married to her after obtaining divorce from his first wife."

The prosecutrix had not even informed her mother that she was carrying pregnancy for a period of 4 months. She had given birth to a female child in August 2010. The FIR was lodged on March 27, 2010 and the appellant was taken into custody since then. It cannot be said that he had at any point of time disowned the paternity of the child, the court noted.

However, the Judge upheld his one year sentence under section 417 IPC for cheating the girl as he had not disclosed to her that he was already married and facing divorce proceedings in court.

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