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Interpretation Of The Category Of Consent In Rape Cases

The term rape in most of the areas inclines over a very crucial display: consent. The idea of consent is not a theological concept it's a genealogical concept. The victim is generally interrogated asking her if she had consented to the conduct of the accused. It seems simple but just existence and absence by the victim is not enough, the circumstance of the situation and knowing the entire story is equally important.

Even though we have a definition of consent in IPC. There are scenarios where we have seen the courts rewriting the definition which is very unfair to the victim. As we see in the case of Mahmood Farooqui vs State of NCT of Delhi the courts have highlighting the fact that they had an history of intimacy they were attracted to each other.

The court pointed out that the victim was 'intellectually well versed' but nowhere in the definition of consent we have read that these factors are important. The court is ignoring the power dynamic between the two and scrutinizing the victim. The court assumes her consent 'A feeble no may mean a yes' specially 'when parties are known to each other' which is very shocking.

Different people react differently some people react by freezing in such situations will that be considered as consent too as there was no resistance. According to me no one should stand in judgement on how one behaves when they are being sexually assaulted. Even after her mentioning in the mail 'it went too far' the court is assuming that she enjoyed it at a part and the entire judgement revolved around the victim's character, rather than focusing on what she says the court pays attention on Mahmood's understanding.

In IPC consent is defined as "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". But in this case what the woman has said is not taken into consideration. Nowhere does it say a feeble no can imply to consent.

It can be distinctly attributed after going through the section the law has sent an eloquent merit for sexual consent, there is no need for examination of consent based on personal feelings and opinion in the mind of the accused. In the explanation there is only mention of what the victim expresses and not what the accuse assumes and interprets. The merits that are set by the legislations are more objective, we can see a constant pattern of victim blaming and scrutinizing the victim's character when it comes to rape cases.

In the case of Tukaram vs State of Maharashtra the judgement of high court was overruled by supreme court saying it is not rape but sex and following reasoning were given: there is no injury, her following Ganpat and that she was habitual to sex. The high court called her non resisting as passive submission but it is not equivalent to consent neither does her past and how many people she has been sleeping with should have mattered the court is ignoring the fact that why was she asked to wait?

Why were the police intoxicated? Why were the lights off? Why and how a man is left to make assumptions? In this country where people believe that rape is consensual inside Haryana's rape culture. Where politicians have to say that "rapes happen because men and women interact freely" (mamta), "sugar attracts ants" (sp's Alu azmi says women were molested because what they wore).

The assumption of the actual meaning of the term consent is interpreted differently by people. Even though we believe there are no blurred lines when it comes it comes to consent that is certainly not the true. We have seen the difference of interpretation of the term consent in different courts be it trial court, high court or supreme court. The same facts can be considered differently and consent is assumed even after a clear cut vital demonstration of lack of consent.

We can encounter where the courts have been making categories between someone who is from urban, rural, well versed or intellectual. Where some people think its easy to misuse the laws now, I feel its difficult for the victim to prove that she did not consent, In the case of Mahmood, Suranya Aiyer (lawyer & writer) had to say that "it was a lack of judgement on the part of Mahmood while forgetting to realise that it was a disappointing judgement after the 2013 criminal law amendment act.

The act was amended after the heinous Delhi rape case. This amendment led to the need of Pino-vaginal sex for rape to go away and accept others as well. This is the reason Mahmood's case was tried under section 375. Even after changes in the amendment and including a definition of consent it has been read and interpreted incorrectly in cases of rape.

The Act ignored the victim's sexual history and assumed the absence of consent, providing an objective criteria for evaluating consent in the victim's favour. Such irrational rulings demonstrate the urgent need for a significant shift in the understanding of Indian rape laws.

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