Introduction:
Consent and will are the two crucial segments for performing any task. It is no doubt that many writers and authors are still confused about the two but courts have interpreted these elements from time to time as per the requirement. Will is something associated with the reasoning power of a person to justify the performance of the task and on the other hand, consent is something done by a person with a Free State of mind provided the person is capable to give the consent.
Sexual intercourse performed voluntarily by a woman with another person implies free consent on her part, which is no offence. Alongside, if he performs it against her consent or with the consent taken by putting her in fear, amounts to an offence under the Penal Code of India. There are possibilities that a man and woman had sexual intercourse in the past with due consent of both parties but that doesn’t mean that man got a right to perform sexual intercourse with her whenever he wants regardless of the woman’s consent. If the woman says ‘no’ that should be followed as ‘no’ without any doubt. A simple word No shall be kept as simple as it reflects.
Section 375 of the Indian Penal Code (hereinafter IPC) criminalize the sexual act by men done on a woman’s body without her will and consent. This act is referred to as Rape. If a girl does not resist intercourse in consequence of misapprehension, this does not amount to consent on her part. The punishment for Rape has been provided under section 376 IPC. It describes the offence as non-bailable. The offence under Section 376 IPC is very serious, still, there are some chances for the accused to get bail. It is possible only if the respected court is satisfied with the facts in favour of the accused.
Consent and Will: Co-synchronized
According to section 375 of IPC, Rape is “sexual intercourse with a woman without her will, without her consent, consent obtained by coercion, misrepresentation or fraud or at any time when she was intoxicated or duped, or was/is of unsound mind where she is incapable of giving consent and if she is under 18 years of age.”
Section 375(1) talks about the sexual intercourse done against the will of a woman will amount to the offence of rape and section 375(2) gives the consent concern for the matter. Hence, will and consent are the significant points to prove the offence of rape against a person.
There is the slightest difference between Will and Consent. If the act is said to have been committed ‘without the will’ of a woman then it is said to be done ‘without her consent. On the other hand, the act done ‘without consent may not necessarily be ‘without the will’ of the woman. For example, P asked Q to have sexual intercourse with him but she refused the offer. P constantly pressurized Q for the same and she gives the consent to be under his pressure. It is to be concluded that she did give the consent but the act was not performed willingly. In the case Holman vs. Queen[1], the Apex court held that the inclusion of willingness in the consent is not necessary. It is possible that the woman gives consent under pressure, hesitance but consciously. Such consent would still be consent. For example, Z, a prostitute gives her consent for the sexual intercourse against her will to do so. Such consent given by her cannot be turned as invalid.
In the case State of U.P. vs. Chottey Lal[2], Hon’ble Supreme Court explained the concept of will by stating that an act done by a man against a female regardless of her resistance or opposition would amount to a heinous offence of rape. The expression ‘against her will’ shall ordinarily mean that a man performed sexual intercourse on a woman despite her opposition and resistance.
Consent holds a little wider scope as compared to will for this offence. Consent generally is an intelligent and positive confirmation of the ‘will’ of a woman. However, Explanation 2 of section 375 explains consent as “an unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates a willingness to participate in the specific sexual act.” Therefore, to get an acquittal, the accused must have received the victim’s consent without any wrongful manner and the same urgently be given freely. In the case of Anwar Mian Alias Md. Anwar vs. the State Of Bihar[3], the accused did not consider the repulsions given by the victim as her refusal for the sexual act that he initiated. Nevertheless, he did not stop and performed sexual intercourse with the victim without her consent. Later, he falsely promised the victim to marry her to gain her consent and refused the same as soon as he was done. He continued the act for the whole night. He was booked for Rape under section 375 of IPC. For this, the defence taken by the accused was that the victim consented to the later sexual acts and therefore he should not be guilty of Rape. Here the court observed that the first act was committed without her consent and the further consent was took on the false pretext of marrying her. The court observed that consent is to be taken before doing sexual intercourse. Consent obtained after the sexual act or the consent taken by putting her in fear of death is no defence to an accused person under section 375 IPC.[4]
Abiding the Consent of a Woman
As discussed above, not taking the free consent of a woman before the act is essential to be booked under section 376 of IPC. If a woman agrees to submit herself freely then the consent is considered as free consent and mere consent given out of helplessness and fear is invalid.[5] In the case Gajanand vs. the State of Gujarat[6], it was held that merely because the prosecutrix was used to the act of sexual intercourse, there can be no presumption of her consent. She has a right to refuse to submit herself to sexual intercourse with anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone.[7]
Hon’ble Mr Justice Anoop Chitraka in the case of Suresh Kumar vs. State of Himachal Pradesh [8]observed that “No means no — the simplest of sentences has become the most difficult for some men to understand” while rejecting the bail plea of the rape accused. In the case, the accused of 26 years allegedly offered the victim, a 17-year-old girl, a lift to her home. They knew each other and therefore she agreed to the lift. Instead of dropping her at her home he took the vehicle in an isolated place and intimidated her to perform sexual intercourse to which she consented a “No”. He asked if she will marry him, to which she again said ‘No’. Furiously he started undressing her and performed sexual intercourse with the threat that if she protests she will be killed. After the act, the accused left and the victim girl returned to her home by bus and narrated everything to her mother. The learned counsel on behalf of the accused contended that the girl and boy were befriended and the consent of the girl for going to her home with the boy proved that their friendship was cordial and hence the sexual intercourse. This conduct of the victim would entitle the accused to the grant of bail.
On this, the court observed that – the incident took place in an isolated area where nobody could see them and if it were a voluntary act on the part of the victim, she would not have narrated the whole act to her mother. This shows the genuineness on her part and she is courageous to disclose the unfortunate incident to her mother and the police for investigation.
When a woman says no, the man is supposed to stop but this simple word is too difficult for some men to understand. On this point, the court stated that – “NO MEANS NO- The simplest of sentences have become the most difficult for some men to understand. No does not mean yes, it does not mean that the girl is shy, it does not mean that the girl is asking a man to convince her, it does not mean that he has to keep pursuing her. The word NO doesn’t need any further explanation or justification. It ends there, and the man has to stop.”
Furthermore, the court strictly observing a NO MEANS NO proceeded with the fact that despite a NO by the victim girl the accused did not stop and stated that – “When the curriculum does not include the proper sex education, the children raised by such societies fail the women time and again.”
The offence of Rape leaves a permanent scar and has a serious psychological impact on not only the victim but also her family members.[9]
Conclusion
There is an important difference between consent and will. The will is not clearly been defined under section 375 IPC but the consent owns a definition under the same. Making sexual intercourse with a woman without her consent and will amount to rape. However, it cannot be contended that the affirmative consent was received by putting in fear of death or coercion or threatening, the consent will be invalid. ‘No’ by a woman does not mean that she is shy, it simply means that she is not interested and is giving a negative consent violation of which would amount to rape in the purview of section 375 IPC.
References:
[1] 1962 (No. 6889), s32(1)
[2] (2011) 2 SCC 550
[3] 1997 (1) BLJR 92
[4] Wahid Khan vs. State of M.P. ((2010) 1 Cri. L.J. 517 (S.C.))
[5] Rao Harnarain Singh Sheoji Singh v/s State (Criminal Misc. 353 of 1957)
[6] 1987 Cri. L.J. 374 (Guj)
[7] The State of U.P. vs. Munshi ((2009) I Cri. L.J. 393 (S.C.))
[8] CWP No.708 of 2021
[9] Rajendra Dutta Zarekar vs. State of Goa (2008 I Cri. L.J. 710 S.C.)
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