Lovers having consensual Sex often promise Moon …, so What : Indian SC

SC verdict on consensual sex, a big departure from the previous mindset, which assumed that women consent to sex only because they want to keep the man.

In end June 2014, a Supreme Court verdict came regarding “Consensual sex and consensual sex not amounting to rape”. The verdict is seen as monumental, as it deliberated on the question ‘Can a failed consensual affair amount to rape’?

In the said verdict, the Supreme Court bench comprising of Justice Vikramajit Sen and Justice S.K. Singh tried to come out with a definition, as to which failed relationships involving consensual sex (sex with consent) cannot be termed rape.

The case SC deliberated upon concerned with a relationship between a top IDFC banker and a former cabin crew member with an international airline. They both had a consensual live-in relationship for three years since 2009, while his divorce petition with his wife remained pending. The woman accused the man of making sexual relations with her on the promise of marrying her. A promise which she believed in. A promise which later was not honoured by the man.

The Court agreed with the accused’s counsel’s argument that the woman was highly educated and knew all along that he was a married man with two children. She also knew that the divorce is still pending. Hence it’s difficult for the court to believe that the accused induced sexual relationship on false promises of marriage.

The Court also seemed to be in agreement with the accused counsel’s argument that the events that took place between the three year live-in relationship between the man and the woman, also reflect on the moral questions involved therein. The questions which even the woman chose to ignore (the moral question of breaking another woman’s marriage and future of the kids).

The SC agreed with the accused’s counsel’s reasoning that people get carried away in such relationships. They had a peculiar relationship and the promise of marriage is not a fact within the code. That apart, the moral transgressions like an extra-marital affair be equated to rape when the woman enters into the relationship with open eyes.

Looking at the overall verdict, the verdict can be summarised as : Lovers in passion often promise Moon to each other…, so What? A promise is not a fact within the Law.

The latest SC verdict, in a way strengthens the verdicts of High Courts in recent years.

Why Supreme Court of India doesn’t want to declare every consensual sex as Rape or Sexual Assault?

Because Supreme Court wants to differentiate Rape from consensual sex. Rape is a type of sexual assault usually involving sexual intercourse (or other forms of sexual penetration) initiated against one or more individuals without the consent of those individuals.

By differentiating the two, SC wants to take into account the changing Times.

Although, even today every such case will be deliberated on separately to ascertain what it amounts to, but still the SC judgement has offered some clarity on what will not constitute rape.

This is a big departure from the previous mindset, which assumed that women consent to sex only because they want to keep the man. The July 28, 2014 SC verdict is monumental as it acknowledges that a woman wants to have sex as much as a man does. It also acknowledges that if love is a heady mixture, then both the man and the woman in a relationship feel the passion. And both make promises. Promises which neither of them has any desire to fulfill. The Court also questions the woman on moral issues, which she must not have overlooked. For instance, in the above case, the court seemed agreeable to the argument that the woman chose to overlook the man’s wife and kids. As the divorce petition was pending, her relationship with the man, made impossible any possibility of reconciliation between the man and his wife.

I’m not saying, there are no other aspects left to the case. I’m not saying, the Court deliberated or exhausted every argument in the case. I’m only saying , the Court has set some precedents. The verdict takes into account the realities of the Modern World, where equally ambitious men and women work together in offices, have the same ambitions, compete fiercely for the best catch and are increasingly becoming self serving. It also takes into account the increasing presence of independent women (married or unmarried) in Indian society, who don’t share sex related mindsets of their mothers and grandmothers.