The central legal point established in the judgment is the significance of consent in determining the offence of rape under section 375 of IPC, particularly in the context of physical relationships established under the pretext of marriage.

JUDGMENT :

Sharad Kumar Sharma, J

To deal with the articulated arguments, certain facts are required to be placed on record. These would be the facts, which are not in dispute qua the respondent, as these were the facts, which have been narrated by him during the course of argument, as well as in the written arguments as it has been submitted by him.

(1) On 04.11.2019, there was a proposal of marriage between the applicant no.1, and respondent no.2. (2) On 25.11.2019, the said proposal was further entangled by getting the “Kundli” compared of the two parties to the marriage i.e. applicant no.1, and the respondent no.2. (3) Upon the “Kundli” being compared, it is further not in dispute that the engagement between the applicant no.1, and the respondent no.2, was held on 23.08.2020.

2. It is further submitted by learned counsel for the respondent, that respondent no.2 had voluntarily travelled with the present applicant no.1, to Nainital; on 10.07.2020, they travelled together, and reached Nainital, and thereafter even on 11.08.2021, 13.08.2021 and 17.08.2021, they have voluntarily established the physical relationship without there being any retaliation by the complainant respondent No.2.

3. Learned counsel for the complainant, in order to denounce the act, on the part of the present applicant no.1, that establishment of the physical relationship on 11.08.2021, and henceforth, as described above, was not with the consent, hence he has referred to, certain observations, which was orally made by the respondent no.2, where it said that she mildly retaliated the act of the establishment of the physical relationship, but ultimately, she acceded to it, and relationship was established on 11.08.2021, 13.08.2021 and 17.08.2021. There is no specific document on record to show that ever since 17.08.2021, when the last sexual interaction took place between the applicant no.1, and the respondent no.2, she had ever, at any point of time, before any authority has written the complaint, that sexual interaction between the complainant/respondent no.2 and the present applicant no.1, had been without her consent.

4. “Retaliation” would mean an actual retaliation in the eyes of law, which could be acceptable and be read in evidence. An oral retaliation is quite a common acclaimed feature, and that oral retaliation would be a retaliation which takes place in a secluded place, where the two persons, male and female, are getting together. That retaliation cannot be established by way of any reliable evidence, though it has been attempted to be narrated in the FIR, as registered by the respondent. It was alleged to be on the occasion of the “Grahpravesh” on 08.05.2021, that the present applicants have participated in the function, and it was thereafter that when they came together, once again the physical relationship was established, though the said date as referred to by the learned counsel for the respondent is in much contradistinction to the dates, which has been referred to in the FIR which rather happens to be of 11.08.2020 onwards.

5. In order to make out an offence under section 376 of IPC, the learned counsel for the respondent has submitted, that if the FIR is taken into consideration, the complainant is said to have objected to the act of the establishment of the physical relationship by an oral objection, but in the eyes of law, the said oral objection cannot be read as to be an actual established objection in practicality, without there being any material acceptable credible evidence being placed on record before this Court to show that there had been an actual retaliation by registering the complaint, and that too when the physical relationship was established between them on a number of occasions. That itself would be an inference to be drawn, that there was a consent which was extended by the respondent no.2, by her an act of non-retaliation, though there might have been an oral stray objection, as it has been observed in the FIR. That stray