The Allahabad High Court has said that if a married woman having experience in sex does not offer resistance, it cannot be said that her physical relation was against her will.

A Single Bench of Justice Sanjay Kumar Singh noted, “This Court is of the view that if a married woman having experience in sex does not offer resistance, it cannot be said that her physical relation with a man was against her will.”

The Bench said this in a case in which an application under Section 482 of the Cr.PC. was filed by the applicants to quash the charge-sheet by which cognizance was taken against applicant no.1 (accused) under Sections 376, 506 of the Indian Penal Code (IPC) and against applicant nos. 2 and 3 (co-accused) under Sections 504 and 506 of IPC and the proceedings were pending before the Additional Civil Judge.

Advocate Raj Kumar Kesari appeared on behalf of the applicants/accused while Additional Government Advocate O.P. Dwivedi and Advocate Ambikesh Kumar appeared on behalf of the opposite parties.

In this case, the victim lodged an F.I.R. regarding an alleged incident against the applicants for the alleged offence under Sections 376 and 506 I.P.C. with the allegations that her marriage was solemnized in the year 2001 and thereafter from the wedlock, two children were born. But there was acrimonious relation between her and her husband and the accused taking the benefit of this situation, coaxed her by assuring that he will solemnize marriage with her, therefore she stayed with him for five months.

During the aforesaid period, on the pretext of marriage, the accused made a physical relation with the victim. The co-accused persons who were brother and father of the said accused also assured the victim that they will get her married with him. Subsequently, on mounting pressure by her, they took her to District Court and took her signature on plain stamp paper and told that her notary marriage was done, whereas, no such marriage was solemnized.

The High Court in view of the above facts and circumstances of the case observed, “The main substratum of argument of learned counsel for the applicants is that applicant nos.1 and 2 are real brothers and applicant no.3 is father of applicant nos. 1 and 2. The victim is married lady aged about 40 years and mother of two children. She is matured enough to understand the significance and morality of the act for which she was consenting with the applicant no.1. It is not a case of rape but a case of consensual relation between applicant no.1 and the victim. She has not given consent under any misconception of the facts, hence, her consent for making physical relation with applicant no.1 was the valid consent.”

The Court said that such a matter requires consideration and ordered that the opposite parties may file counter affidavit within six weeks.

“Having heard the learned counsel for the parties, I find that it is not disputed that victim is an adult and married woman aged about 40 years. She without giving divorce to her husband and leaving her two children, started living in live-in relationship with the applicant no.1 in order to achieve her aim of marriage with the applicant no.1”, also noted the Court.

Accordingly, the High Court listed the case after nine weeks and stayed the proceedings against the applicants until its further order.

Cause Title- Rakesh Yadav and 2 Others v. State of U.P. and Another

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