Concept Of Consent Under Indian Rape Laws

Coverage of this Article

KEY TAKEAWAYS

-What implies consent and what does not

INTRODUCTION

-Rape as defined under the law is a crime of an act of sexual intercourse where the same is not mutual and there lies force against her will and other aspects.

CONSENT

-Consent by all means is a means of putting forth the willingness of a person to do or abstain from doing any act. Consent cannot be called as consent unless it is free from any force, coercion or threat.

RAPE UNDER IPC

-Rape is defined under section 375 of IPC as a man is said to commit rape when he has sexual intercourse with the woman, without her consent or with her consent when such a consent was obtained maliciously or through fear and misappropriation, against her will, with or without her consent when such a victim is of age less than 16 years.

WHAT IMPLIES CONSENT

-As mentioned through the two sections of IPC section 90 and explanation 2 of section 375 consent must be said directly and outrightly. A woman is said to given consent when she wilfully says yes for the sexual activity as discussed in the Mahmood Farooqui case.

CONCLUSION

-The consent has been an important ingredient to determine the act of rape. The provisions have well described the meaning of the term and also the necessity of the same in determining the offence.

KEY TAKEAWAYS

• The concept of consent
• Rape under Indian laws
• What implies consent and what does not

INTRODUCTION

• Rape as defined under the law is a crime of an act of sexual intercourse where the same is not mutual and there lies force against her will and other aspects. The major essence to determine whether such an act falls under the purview of rape is consent. Consent is when the other person agrees wilfully without any force, coercion, or undue influence for the act of sexual intercourse.
• Consent in general is your willingness to do an act, that says that you in all your senses have agreed to do the same without any pressure or coercion. In terms of rape, it becomes very difficult as to conclude whether there was consent given or it was against the consent of the victim.
• Under the Indian laws consent with regards to rape has been defined under section 375 of Indian Penal Code.

CONSENT

• Consent by all means is a means of putting forth the willingness of a person to do or abstain from doing any act. Consent cannot be called as consent unless it is free from any force, coercion or threat.
• Consent defined under section 90 of IPC defines negatively and provides that any consent obtained by way of force is not consent and it shall not be given under fear.
• Under the section 375 of IPC consent is defined limited to the act of rape and under this the consent means the voluntary agreement of the willingness for mutual sexual intercourse either through verbal or non-verbal actions.

RAPE UNDER IPC

• Rape is defined under section 375 of IPC as a man is said to commit rape when he has sexual intercourse with the woman, without her consent or with her consent when such a consent was obtained maliciously or through fear and misappropriation, against her will, with or without her consent when such a victim is of age less than 16 years.
• Of all, as rightly pointed in the beginning consent is the essence to determine whether such an act was an act of rape or with mutual interest.
• For instance, in the case Mahmood Farooqui vs State (Govt. of NCT of Delhi) [CRL.A.944/2016]a standard affirmative model was accepted that is unless and until a woman is questioned and says yes for the sexual activity it shall not be deemed to be consented. The model accepted states a yes means a yes and no means a no and when the answer is no and any action takes place thereby shall be considered rape.

WHAT IMPLIES CONSENT

• As mentioned through the two sections of IPC section 90 and explanation 2 of section 375 consent must be said directly and outrightly. A woman is said to given consent when she wilfully says yes for the sexual activity as discussed in the Mahmood Farooqui case.
• Here in the case of Tukaram vs State of Maharashtra [1979 SCR (1) 810], the Supreme Court held that the consent of the victim has to be decided based on the circumstances that happen and in the above case it was held that since there were neither any bodily injury nor a call for help nor struggle the court held that this would leave to consensual sex.
• Thus, it was then claimed that bodily injuries and no call for help would also amount to giving consent in addition to the other circumstances.
• But recently in a judgment made by the Patna high court in the case Islam Mian vs State of Bihar [Criminal Appeal (DB) No. 425 of 2019], it was held that mere non-resistance would not lead to giving consent for the same.
• We can say that it depends upon the circumstances of the case wherein the victim’s consent is determined, but it is the essence in identifying the crime.

CONCLUSION

• The consent has been an important ingredient to determine the act of rape. The provisions have well described the meaning of the term and also the necessity of the same in determining the offence.