The Bombay High Court has said that a woman, when intoxicated, is incapable of giving a free and conscious consent to a sexual relationship. It added that a woman's consent to a sexual relationship, when drunk, will be considered invalid, and that it is not an 'excuse for committing rape.'
The Bombay HC also said that if a woman says "No" to sexual intercourse even once, it must be understood that she is unwilling. Similarly, if she says "Yes," it "must be free and unambiguous" for the incident to not amount as rape.
"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 said, adding that "silence, or uncertainty" in itself, cannot demonstrate consent, the Hindustan Times reported.
The order came after hearing bail applications that were filed by a resident of Pune, who has been accused of gang-raping a colleague with the help of a couple of friends. He has argued that the victim had four servings of a cocktail following which he took her to his friend's flat on the night of the incident.
However, the woman has said that she had unknowingly consumed alcohol and accused the Pune resident of having spiked her drinks following which she lost consciousness and was taken to his flat.
Justice Bhatkar observed that the woman's statements did not add up after having listened to the statements of the waiter and other witnesses, who were there at the restaurant. But that did not mean that the petitioner could be given the benefit of doubt.
"The simple question is that even if the victim was drunk and could not even walk, why the petitioner did not drive her to her house instead of taking her to his friend's flat. Even if the victim did not disclose that she had drinks, this doesn't mean that her entire statement is false," Justice Bhatkar said.
"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," she added.
Justice Bhatkar rejected the petitioner's bail plea, but has granted bail to the co-accused, HT reported. She added that the "rising number of rape cases, whether genuine or false," must be a wake-up call to provide "the young generation" with some "legal education."
