Can’t quash rape case until consent is proved: Bombay HC

The Bombay high court has refused to quash an FIR filed against a 27-year-old man for raping his fiancée after promising marriage, saying the woman’s consent must first be proved to settle such cases.

Quashing the FIR against the petitioner would deny the woman a chance to prove her allegations, said a bench of justice Ranjit More and justice Anuja Prabhudessai, who were hearing a plea filed by Pune resident.

The petitioner asked for the FIR filed by his ex-fiancée to be quashed, as she had agreed to the physical relationship. He argued the woman had resisted initially, but agreed as the couple were engaged. But the bench dismissed his plea saying under amended 2013 rape laws, the court must differentiate between “consent in the form of a freely exercised choice and consent in the form of passive submission out of fear or pressure”. Citing several Supreme Court rulings, the bench said “it is now an established principle of law that clauses ‘against one’s will’ and ‘without one’s consent’ hold different meanings and passive submission under pressure cannot be held as consent”.

He and the woman got engaged in September 2014. In December 2014, when she went to visit him and his mother, he took her to his room and forced her to have sex — “without her will and despite resistance”, according to the FIR In January, his family called off the wedding. The bench said while it was established the “petitioner had sexual intercourse with the woman without her will, it remains to be seen if this was a case of passive submission under psychological pressure”.