Intimate relationship between two adults does not justify sexual assault: Bombay High Court

A relationship between two adults does not justify sexual assault by one on his partner, the Bombay High Court has observed while refusing to quash a a rape case. [Amol Bhagwan Nehul v State of Maharashtra and Anr.].A Division Bench of Justices AS Gadkari and Neela Gokhale noted that although the first information report (FIR) indicated an intimate relationship between the parties, it clearly alleged forced, non-consensual sex."A plain reading of the F.I.R. does indicate that there may have been an intimate relationship between the parties. However, the Complainant has clearly alleged that, the Petitioner had established sexual intercourse forcibly with her and without her consent, despite a relationship. A relationship between two adult individuals does not justify sexual assault by one on his partner," the judgment passed on Friday stated..The Court was hearing a petition by the accused to quash the case registered against him under sections 376 (rape), 376(2)(n) (rape committed repeatedly on the same woman), 377 (unnatural offences), 504 (intentional insult to provoke breach of peace) and 506 (criminal intimidation) of the Indian Penal Code (IPC).According to the FIR, the accused, who was the complainant's neighbour and was in a relationship with her, promised to marry her, threatened to take his own life if she did not marry him, and raped her on multiple occasions.The complainant also alleged that the accused forcibly had unnatural sex with her and that the accused's family abused and threatened to kill her and her son for mentioning marriage with the accused..The petitioner argued that the relationship was consensual. He claimed that the complainant was married and also belonged to a different religion than that of the petitioner, which negated the allegation of false promise of marriage.Further, he asserted that a sexual relationship between willing adult partners is not a rape unless the consent was obtained by a fraudulent act or misrepresentation by one of them, even if the sexual relationship between the willing partners does not culminate into marriage..The complainant reiterated the contentions in the FIR and cited the medico-legal examination report of sexual violence to demonstrate that the findings clearly mentioned that forcible sexual intercourse could not be ruled out. Accordingly, the complainant urged dismissal of the petition. .The Court noted that the FIR clearly alleged forced, non-consensual sex and remarked that a relationship between two adults did not justify sexual assault."Insofar as the defense in the Petition that, there was a consensual relationship between the parties is concerned, it is trite that a relationship may be consensual at the beginning but the same state may not remain so for all time to come. Whenever one of the partners show their unwillingness to indulge in a sexual relationship, the character of the relationship as ‘consensual’ ceases to exist," the Court added.Furthermore, the Court noted that the allegations in the FIR did not demonstrate continuous consent on part of the complainant and that although she was inclined to marry the petitioner, she was not inclined towards a sexual relationship with him. Therefore, the Court opined that allegations in the FIR prima-facie constituted the commission of the alleged offense and that the defense of the petitioner could not be tested at this stage. The Court cited the Supreme Court's decision in Priyanka Jaiswal v. The State of Jharkhand and Others where it was held that the High Court could not hold a mini trial while exercising writ jurisdiction.It also cited the apex court's decision in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat to assert that statement of prosecutrix is to be believed at the stage.Accordingly, the Court held that the FIR did not lack ingredient of the offences alleged and accordingly, dismissed the writ petition..The petitioner was represented by advocates Abhang Surywanshi and Narayan Rokade.The complainant was represented by advocate Mahindra Deshmukh.The State was represented by Additional Public Prosecutor Anamika Malhotra..[Read Judgment]