Consent for indulging in unnatural sex 'immaterial': Court

Consent to indulge in unnatural sex is "immaterial", a Delhi court has held while convicting a man of raping and committing unnatural act with a woman on the false promise of marriage, despite he being already married.

Additional Sessions Judge (ASJ) Virender Bhat held Noida resident Prashant Kaushal guilty of the offences saying though the sexual relations between him and the woman were consensual but the victim's consent was not free and voluntary as she was falsely assured by him that he was obtaining divorce from his wife and would marry her.

"The consent is immaterial so far as carnal intercourse against the order of nature between a man and a woman is concerned and therefore, every act of unnatural sex committed by the accused with the prosecutrix is an offence under section 377 (unnatural offences) of the IPC," the court said.

The court, which is yet to pronounce order on quantum of sentence, agreed with the submissions of the defence counsel that instances of physical relations between Kaushal and the woman could not have been forcible all the time.

It, however, said that it does appear that the woman was having sexual encounters with the man voluntarily but having belief in her mind that he has filed petition for divorce against his wife and is going to marry her at any cost.

The court said it was not only the man but his parents also who deceived the woman and persuaded her to continue sexual relations with their son on the promise that he would marry her after he gets divorced from his wife.

"Kaushal also used to force her to consume alcohol before engaging in sex with her in order to ensure that she does not offer much resistance and he gets more pleasure and satisfaction from it," the court noted, adding her consent was not free and voluntary.

According to the prosecution, Kaushal and the woman were working in the same office in Gurgaon and they became friends and used to go for outing. When she fell ill, the man came to his house and raped her and on her resistance, he assured her that he would marry her.

It said the man took the woman to several places outside Delhi since 2012 to 2014 and after making her consume alcohol, he forcibly established physical relations including unnatural with her.

It added that the woman took transfer to Hyderabad where the man followed on one pretext or other and later on she quit her job.

When the man introduced the woman to her parents for marriage purpose in 2013, she came to know he was already married and they assured her that he would obtain divorce from his wife and would marry her, the prosecution said.

The man, however, kept on delaying the divorce and marriage proceedings and threatened to ruin the woman's life after which she lodged a complaint against him at Dwarka North police station in June 2014.

During the trial, the man admitted being friends with the woman and going for vacations with her but denied having any physical relations with her.

The court, however, noted that while seeking anticipatory bail in the high court, the man had admitted that physical relations between him and the woman were consensual.

The court rejected the defence counsel' contention that since the woman had not given any complaint against the man to Workplace Harassment Cell set up in the company office, her allegations levelled against the accused cannot be believed.

"The accused had committed rape upon the woman for the first time at her house after office hours and thereafter also they were having sexual encounter with each other after office hours at places other than their office. Therefore, there was no reason or occasion for the woman to file any complaint before the Workplace Harassment Cell," it said.