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Consensual sex is not rape: Supreme Court

Agencies

Posted: Aug 29, 2007 at 1908 hrs IST

A man having sex with a girl after obtaining her consent on the promise of a marriage does not necessarily constitute rape even if he retracts on his pledge, the Supreme Court has ruled.

Such retraction by the accused would amount to rape only if the consent was obtained by coercion or threat, a bench of Justices Arijit Pasayat and D K Jain said while upholding an appeal filed by the accused Pradeep Kumar.

The apex court maintained that there was no straitjacket formula for determining whether consent given by the girl was voluntary or given under a misconception of fact as it has to be decided on the basis of the circumstances and surrounding factors which led to the alleged consensual sex.

"The court must consider the evidence before it and the surrounding circumstances before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary or was given under a misconception of fact," the apex court observed.

Pradeep Kumar had filed the appeal against the orders of a sessions court and the Patna High Court which rejected his plea for discharge from a case filed against him by a girl who got him booked under IPC Sections 376 IPC (rape) and 406 (breach of trust) for "retracting" on his promise to marry her.

In his appeal before the apex court, the accused claimed that the victim had consensual sex with him and hence the charge of rape or breach of trust cannot be entertained.

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