The presence of consent in a consensual relationship, even after the complainant knew the accused was married, negated the offense under Section 376 of the IPC.

JUDGMENT :

SHARAD KUMAR SHARMA, J.

1. The content of the FIR apparently speaks in itself as to whether at all, under the peculiar set of circumstances, and the allegations levelled therein, there could at all be an offence under Section 376 of the IPC.

2. The complainant/respondent No. 2, when she registered an FIR on 30th June, 2020, being FIR No. 308 of 2020, she levelled an allegation for commission of offence under Section 376 of the IPC, as against the named accused person, i.e. the present applicant. But considering the gravity of the offence under Section 376 of the IPC, though apparently, it seems to be a social menace, which is normally levelled against a male, but then, we have to simultaneously balance the equity or and also look into the aspect of the contribution or the active role played by a female for commission of the offence under Section 376 of the IPC.

3. The offence under Section 376 of the IPC, is only penal in nature, which provides for a punishment to an accused person who is ultimately found to be involved in the commission of rape. In order to derive as to whether an act complained of in the FIR, actually happens to be a rape itself, Section 376 of the IPC, is to be taken into consideration.

4. There are various facets provided under the definition of rape under Section 375 of the IPC, which primarily is pivoted around a “consent of the opposite sex.” If there is an element of consent available for the commission of the offence under Section 376 of the IPC or is apparently made out from allegations, it cannot be termed to be a rape because, it is a consensual relationship which was established by the consent of the opposite sex. Section 375 of the IPC reads as under:

“375. Rape - A man is said to commit “rape” if he:

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person.

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person.

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person.

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:

First - Against her will.

Secondly - Without her consent.

Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly - With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly - With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly - With or without her consent, when she is under eighteen years of age.

Seventhly - When she is unable to communicate consent.

Explanation 1 - For the purposes of this section, “vagina” shall also include labia majora.

Explanation 2 - Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1 - A medical procedure or intervention shall not constitute rape.

Exception 2 - Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years o