A ‘yes’ when drunk still means ‘no’: Bombay HC on consent for sex offers hope

In a country which is still struggling to define and understand the term "consent", a recent judgment by the Bombay High Court — saying that if a woman consents to a sexual relationship when intoxicated, it will not be considered valid or as an “excuse for committing rape" — gives hope that things are changing for the better.

Justice Mridula Bhatkar, while hearing the bail application filed by a Pune resident accused of gang-raping one of his colleagues, said: “Not every ‘yes’ is covered as valid consent defined under Section 375 of the Indian Penal Code. The term ‘without a woman’s consent’ has a wider meaning and covers a broader area of her wish to have sexual intercourse.”

According to a Hindustan Times report, the petitioner had argued that the survivor was not averse to consuming alcohol and on the night of the incident, she had four servings of a cocktail, after which he had taken her to his friend’s flat.

To this the judge said: “The simple question is that even if the victim was drunk and could not even walk, why the petitioner did not drive her to her house instead of taking her to his friend’s flat. Even if the victim did not disclose that she had had drinks, this doesn’t mean that her entire statement is false. Her post-rape condition suggests that she did not want to have sexual intercourse and if at all she had consented to it, the said consent was not valid.”

The latest court observation could prove to be a milestone in Indian women’s search for justice in a country where gender sensitivity is light years behind.

While the judgment was concerned with the "consent" of one woman in a particular case wherein she was drunk, it strengthens women's movements of all hues fighting to make a society understand the meaning of "consent".

In India, if a husband has sex with his wife without her consent, it is not legally considered rape, thanks to a provision is Section 19 of the Hindu Marriage Act, which gives either spouse or party in a marriage the legal right to "restitution of conjugal rights", which empowers a husband (mostly) to use the law to secure his wife's consent to sex, and in the event she refuses, gives him a wide latitude to get a divorce, on the grounds of "mental cruelty". Even the Special Marriage Act provides for the same in Section 22.

Also, the numerous incidents of victim-shaming goes on to show how most cases of sexual violence against women are being labelled as results of the victim's "inappropriate dressing or behaviour (read drinking in public) inviting the trouble.

The judgment also raises the need to mainstream the discourse on alcohol and Indian women. Indian women, for ages, have been labelled "good" or "bad" based on their habits and preferences. And alcohol consumption in any amount is considered a taboo and makes her "immoral".

While hearing the case, Justice Bhatkar also said that considering the “rising number of rape cases, whether genuine or false,” “the young generation” must be given some “legal education".

Sexual violence against women is not only an outcome of lack of gender sensitivity. Justice and equal treatment to women also depend a lot on legal reasoning and awareness about the provisions of law and their interpretation among citizens living in a society deeply steeped in patriarchal prejudice. 

Also read: Uma Bharti's way of punishing rapists is disturbing and unjust