A Woman Staying With A Man Does Not Equal Consent For Sex

The Delhi High Court ruled that a woman staying with a man does not equal consent for sex. The plea petition for bail was filed by Sant Sevak Das (an alias for Sanjay Malik). The High Court denied his bail. 

Sant Sevak Das was accused of raping a Czech Republic National on October 12, 2019. The instance allegedly occurred in a Delhi hostel. The accused then went on to establish physical relations with the prosecutrix on January 31, 2020 and February 7, 2020, in Prayagraj and Gaya respectively.

The prosecutrix conveyed that the accused posed as a 'spiritual guru' to guide her with the funeral ceremonies related to her deceased husband and took advantage of her. The woman's spouse passed away on August 8, 2019. 

Justice Bhambhani, the presiding judge noted that the woman was dependent on the accused for the funeral ceremonies as she was a foreign national and therefore was not aware of the Hindu rites. 

The court noted that the woman had travelled with the accused for over four months and no allegations of being held hostage or forceful advances had been made. However, this alone does not mean that the rape did not occur. 

The court conveyed that the woman's silence over the first physical activity should not be taken as consent. It may have been compulsion given that the woman felt dependent on the accused. Therefore, there may not have been consent established during the act. 

This begs the question: 

Is A Woman Staying With A Man Taken As Consent For Sex? 

Why have we in Indian Society not been able to liberate women from the shackles of such orthodoxy? 

A woman giving consent for staying with a man is not consent for sex. Neither is silence consent for sex. The only consent for sex is exclusively spoken and given in the absence of a scenario that is capable of consent manipulation. 

Surprisingly, the Indian Judiciary can consolidate such a view through its judgement when it remains divided on the prospect of marital rape. 

The issue of marital rape is not very different from the case narrated above. The grounds for rape seem consolidated by the institution of marriage in the absence of a penalty. 

Women, some housewives and even those not, depend on their spouses as marriage is an institution that creates a conducive environment for the same. Women then feel pressured to offer themselves to their husbands as they are dependent on them and primarily because they think it is their duty. 

The same environment for the court ruling should be applicable here. Women's silence is taken as consent by their husbands. 

Why then do Indian women in matrimony not enjoy the same rights as foreign nationals in India? Why is then marital rape not acknowledged in courts? And why is there no separate section addressing the penalty for a crime that has been conducted through ages under the garb of institutionalised coupling? 

Men staying with men aren't necessarily viewed as sexually invested spouses even when that may be the case. However, society is quick to assume that the relationship of a woman staying with a man cannot be anything if not sexually invested. 

Section 375 of the Indian Constitution has six clauses dedicated to consent, the fulfilment of any of which will result in rape. The term 'consent' under Section 375 is void in practicality in cases of fear, intoxication, or unsoundness of mind. Those should not be the only grounds. There may be other instances of consent manipulation which cancel out the consent, but such examples are yet to find their place under section 375. 

Suggested Read: How Does Law Protect Women In Live-In Relationships?

The views expressed are the author's own.