Drunk woman's consent for sex not an excuse to commit rape': Bombay HC

Mumbai: The Bombay High Court held that consent given by an intoxicated woman will not be considered valid or an ‘excuse to commit rape’ when judging a relevant case.

According to a Hindustan Times report, the court has observed that if a woman says ‘no’ to intercourse even once, it should signify that she is not interested. It also added that consent should be ‘free and unambiguous’ for the incident to not be called as rape.

The court also observed that “an intoxicated woman is incapable of giving a free and conscious consent to a sexual relationship.”

“Not every ‘yes’ is covered as valid consent defined under section 375 of the Indian Penal Code. The term ‘without a woman’s consent’ has a wider meaning and covers a broader area of her wish to have sexual intercourse,” Justice Mridula Bhatkar was quoted as saying.

Bhatkar further added that ‘silence or uncertainty’ in itself cannot indicate consent.

Justice Bhatkar was hearing the bail applications filed by a resident of Pune, who was charged of gangraping a colleague with two other friends.

The accused claimed that the victim had consumed four cocktails on the night of the incident, following which he had taken her to his friend’s flat.

However, the victim claimed that she had not consumed alcohol intentionally. Instead, she alleged the accused had spiked her drinks, adding that she was unconscious when he took her to his friend's flat.

Though the victim’s account had a few inconsistencies when compared with accounts of other witnesses, the court refused to give any benefits to the petitioner for the same.

The judge questioned as to why the accused took the victim to his friend’s flat instead of dropping her home if she was drunk and could not even walk. 

“Even if the victim did not disclose that she had had drinks, this doesn’t mean that her entire statement is false. Her post-rape condition suggests that she did not want to have sexual intercourse and if at all she had consented to it, the said consent was not valid,” said Justice Bhatkar while rejecting the petitioner’s bail plea.

However, she granted bail to the two fellow accused in the case.  

Commenting on the rising number of rape cases, whether “genuine or false”, Justice Bhatkar said that the younger generation must be given some legal education.