Mumbai: The Bombay High Court, while emphasising that a woman who says “NO” means “NO” and there exists no further ambiguity, said a woman’s character or morals are not related to the number of sexual partners she has had.
A bench comprising Justice Nitin Suryawanshi and Justice MW Chandwani said this while upholding the conviction of appellants for various crimes, including the offence of gang rape.
The Nagpur bench of the High Court said rape in its simplest term is “ravishment of a woman without her consent by force, fear or fraud” and sexual violence diminishes law and thus, unlawfully encroaches on the privacy of a woman.
Rape is the most morally and physically reprehensible crime in society: High Court
“Rape cannot be treated only as a sexual crime but it should be viewed as a crime involving aggression which leads to the domination of the prosecutrix. It is a violation of her right of privacy. Rape is the most morally and physically reprehensible crime in society, as it is an assault on the body, mind and privacy of the victim. Rape objectifies a woman and thereby shakes the very core of her life,” the High Court said.
Sexual intercourse on one hand gives pleasure to the participants including a woman but if it is done without consent of the woman, it is an assault on her body, mind and privacy and therefore, it is an offence if sexual intercourse is done without the consent of a major woman of the age of 18 years and above, the High Court added.
There could be no presumption of consent based on a woman’s so called ‘immoral activities’: High Court
“A woman who says “NO” means “NO”. There exists no further ambiguity and there could be no presumption of consent based on a woman’s so called “immoral activities”,” the High Court said.
An attempt was made by the convict to question the morals of the woman
One of the convicts argued that he was in a relationship with the woman in the past and an attempt was made by the convict to question the morals of the woman. It was brought before the court that the woman was an estranged wife and without getting divorced from her husband, she was residing with another man and she had an intimate relationship with one of the convicts before she started residing with another man in a live-in relationship in spite of the fact that her previous marriage was subsisting.
Earlier consent does not ipso facto give consent to sexual activity with same man at all other instances: High court
The High Court rejected the arguments and said that no doubt the woman was an estranged wife and without getting divorced from her husband, she was residing with another man and allegedly had an intimate relationship with one of the convicts, even then a person cannot force a woman to have intercourse with him without her consent.
The High Court further said that even though there may have been a relationship between the woman and the convict in the past but if the woman was not willing to have sexual intercourse with him and other convicts, any act without her consent would be an offence within the meaning of section 375 of the Indian Penal Code (IPC).
“A woman who consents to sexual activities with a man at a particular instance does not ipso facto give consent to sexual activity with the same man at all other instances. A woman’s character or morals are not related to the number of sexual partners she has had,” the High Court said and added that the intimacy, if any, will not absolve the convict and at the most, this will be relevant while considering the punishment.
