Consensual sex with a major is not an “offence” but is “unethical”: Allahabad High Court

Dismissing the bail plea of one of the four accused in the case, Justice Rahul Chaturvedi said that it was the duty of the man, claiming to be a minor’s boyfriend, to protect her when she was being sexually assaulted by the other co-accused.

The Allahabad High Court held that consensual sex with a major is not an “offence” but is “unethical, immoral, and against established Indian tradition.”

“The moment the applicant submits that the victim is his beloved, it becomes his binding duty to protect the dignity, honour and reputation of his girlfriend. If a girl is major, then having sex with her consent is not an offence, but certainly, it is unethical and immoral, and also not in consonance with the established social norms of the Indian society,” he said.

The Allahabad High Court, while rejecting the bail plea of a gang-rape accused, held that consensual sex with a major is not an “offence” but is “unethical, immoral, and against established Indian tradition.”

Adv. Jayesh Wani (Defence Lawyer) said, “The constitution is not a voice of the majority, it is to secure the rights of the minority. Women belong to the weaker section of society. The Hindu Marriage Act is for the security of women. This means the constitution is written looking at the present prevailing conditions of 1950 working with the past historical influence. The concepts are notwithstanding with the 21^st century. Unfortunately, if a woman complains about an accused, then till the trial goes on, he has to remain in custody till the Court makes a Judgement may he be acquitted or found guilty.”

Adv Dr Yusuf Iqbal Yusuf said, “Consent is paramount for any sexual relation. However, in qua consensual relationship with a minor, it must be understood that as per law, a minor is incompetent to contract and also incompetent to consent to any relationship. Therefore a minor’s consent for a sexual relationship is voidable at the instance of the minor. Whereas two consenting adults are open to having relationships.”

Adv. Bhaskar Sarode said, “It is an agreed relationship firstly from both the sides, then afterwards as the relationship gets perturbed then FIR’ get registered. For Blackmailing and trod down him or avenging him the complaint is done. Many times assurance of marriage is given and then the man turns away and then the woman feels she is cheated and me too feeling engulfing her. Some are extortionists they have a racket and Honey trap is led.”

If a girl is major, then having sex with her consent is not an offence, but certainly, it is unethical and immoral, and also not in consonance with the established social norms of the Indian society

According to the FIR, on February 19, the victim, a resident of Kaushambi district, had gone for her stitching lessons at an institute and spoke to her boyfriend Raju and they both planned to meet

While efforts are made to de-stigmatise sex in Indian society, a rather regressive observation by the Allahabad high court is seen as a major setback to all the progress made in this direction.