Educated woman over 18 can’t allege rape if she consents to sex, says HC

If a woman is educated and over 18 years, but still does not exercise her right to say “no” to a sexual relationship, she cannot allege rape when the relationship turns sour, the Bombay high court held on Thursday.

The HC observed although “society has taboos around sexual relationships,” if a woman does not say no to such a relationship, it should be considered “consensual.”

The observations came as the court was hearing a plea filed by a 25-year-old man, who was seeking bail. The man said he was in a year-long relationship with a 24-year-old woman from Goregaon. The two were physically intimate, and the man had promised to marry the woman.

At the end of the year, however, he could not keep his promise of marriage and the couple broke up. Soon after, the woman accused him of raping her. She got the police to register an FIR on charges such as rape, cheating and assault.

She alleged while they were in a relationship, the man would take her to hotels across the city and force her to have sexual intercourse with him, all the while assuring her of marriage.

She alleged that she got pregnant and the man had forced her to get an abortion. She said she used to help him financially, but he often assaulted her. Fearing arrest, the man approached the HC.

The woman’s counsel, meanwhile, opposed the plea saying the woman had been “wronged” and that a “physical relationship on false promise of marriage must be considered rape”.

Justice Mridula Bhatkar, however, junked the woman’s plea. “This cannot be considered rape. You are a major, educated and you have the choice of saying no. But, if you did not say no at the time, then it will be considered as mutual consent. When the woman is educated and mature, she can say no. When she yes, it becomes mutual,” justice Bhatkar said and granted bail to the man. Justice Bhatkar, however, warned him against “contacting or harassing the woman or her family members in any manner”.