‘If the woman says she didn’t consent to intercourse, court will presume she did not’

Rape is presumed if occurrence of sexual intercourse is proved and the woman claims the act was committed without her consent, the Supreme Court has held.

“Section 114-A of the Indian Evidence Act, 1872 deals with the presumption as to absence of consent in certain prosecution for rape. A reading of the Section makes it clear that where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent,” a three-judge Bench of Justices U.U. Lalit, Indu Malhotra and R. Subhash Reddy observed in a recent judgment.

The case involved a woman who accused her employer of repeatedly raping her and taking inappropriate pictures for the purpose of blackmail. He had allegedly even gone to the extent of calling her betrothed and sending him some of the pictures. She finally lodged a complaint and a case of rape was filed against him.

However, the Gujarat High Court quashed the case on the ground that the parties had reached a “settlement” over a large sum of money. The woman subsequently appealed to the Supreme Court saying the “settlement” was a document drawn under threat and coercion. The apex court said the High Court seemed to have gotten “carried away” by the settlement, which itself needed to be investigated.

“When it is the allegation of the appellant [woman], that such document itself is obtained under threat and coercion, it is a matter to be investigated,” the court said.

The phone call to the woman’s betrothed should also be probed. It said the High Court had committed an error in quashing the trial court proceedings. The court, without commenting on the merits of the case, ordered the accused to co-operate with the investigation.