Consent To A Relationship Is Not Tantamount To Consent To Each Act Within It: Delhi High Court
The Court denied anticipatory bail to Doctor accused of rape, and held that Section 69 BNS is a residual provision and vacates interim protection citing alleged loss of phone and deletion of chats.
Justice Sachin Datta, Delhi High Court
The Delhi High Court has held that even if a relationship is consensual, that does not answer a specific allegation of forcible intercourse on identified occasions. The Court said consent to a relationship cannot be equated with consent to each act within it, placing reliance on Explanation 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023.
The Court dismissed the anticipatory bail plea of a postgraduate medical student and vacated the interim protection granted on August 17, 2026. It held that the case was not merely one of a false promise of marriage, that the investigation needed his custodial interrogation, and that the circumstances around his lost phone and deleted Instagram messages bore on his credibility.
A Bench of Justice Sachin Datta while making a reference to Explanation 2 to Section 63 of the BNS, observed, “The consensual nature of the relationship, even if accepted, does not by itself answer the specific allegation of force on the identified dates, made in the FIR and reiterated in the statement of the complainant under Section 183 BNSS. In this regard, it must be emphasised that consent to a relationship is not tantamount to consent to each act within it…”.
Senior Advocates Mohit Mathur and Vidha Datta Makhija appeared for the petitioner Senior Advocate Warisha Farasat appeared for the respondent.
The FIR, registered on July 29, 2026 invoked Sections 64(1), 69, 351(2) and 115(2) of the BNS, with Section 64(2)(m) added later. The complainant, an adult, alleged that the applicant contacted her on Instagram in November 2025 and repeatedly promised marriage. She alleges forcible intercourse on December 21, 2025, March 8, 2026 and June 3, 2026, and an attempt on April 11, 2026, accompanied by threats of self-harm.
The applicant was detained in Patna on July 30, 2026, but the Chief Judicial Magistrate there declined transit remand on procedural grounds and released him. The Saket Sessions Court rejected his anticipatory bail plea on August 10, 2026. The High Court granted interim protection on August 17, 2026 and extended it on September 17, 2026. The State then sought its vacation.
The Court said anticipatory bail is an extraordinary remedy for exceptional cases, it held that absence of a need for custodial interrogation is not by itself a ground for bail, and that joining the investigation does not foreclose later custody. It held that where consent is denied on identified occasions, the false-promise question does not arise, and Section 69 operates only where the act does not amount to rape.
The Bench found the complainant’s account prima facie supported by her Section 183 BNSS statement, the medical examination, call detail and location records, hotel records and the applicant’s own messages. It found his version of the phone being snatched at knifepoint not credible, noting that no police complaint was placed on record. The counter-blast plea was left to investigation and trial.
Cause Title: Akshay Aditya v. The State of NCT of Delhi & Anr. (Neutral Citation: 2026:DHC:9608)
Appearances:
Petitioner: Senior Advocates Mohit Mathur and Vidha Datta Makhija.
Respondent: Hemant Mehla, APP, Warisha Farasat, Senior Advocate.