Criminal Defenses & Legal Remedies available against False Accusation of Rape after the Couple had Consensual Sex | Criminal Attorney in Delhi NCR | Criminal Lawyer in Delhi NCR |

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“Sometimes consensual sex by a couple is misconstrued as rape or it is portrayed as rape and is deliberately made a non-bailable and non-compoundable offense. Obtaining anticipatory bail or regular bail in such cases becomes difficult. Further, the legal remedies available to the alleged accused are also limited. Scope of criminal defenses is/are also limited and thus prooving a person innocent in a criminal trial or criminal case further becomes difficult.”

Something strange is going on in India. The trend of pre-marital sex is on the rise, but simultaneously, so are the number of women falsely alleging rape after having consensual sex with the Boy. This has become a very big issue. After the FIR is lodged on the accusation of rape by women, arrest of the accused is certain. There are some legal remedies available to boys in case of false accusation of rape after he had consensual sex.

Top Ten Criminal Defenses & Legal Remedies available against False Accusation/Allegation of Rape after the Couple had Consensual Sex

1. Sexual Intercourse with the Consent of Complainant:- In case of false accusation of rape after the accused and complainant had consensual sex, the legal remedy available to the accused is to prove that it is the case of sexual intercourse with the consent of the complainant. The accused have to prove that the consent of the complainant was not obtained in fear of death or of hurt and the consent was not given on account of the fact that the accused was another man to whom she believed to be lawfully married and the consent was not given due to unsoundness of mind or intoxication.
2. No Misconception of Fact is present while giving Consent:- In case the complainant alleged that she had given consent to sexual intercourse with the accused with whom she was deeply in love, on a promise that he would marry her on a later date, then also it would not amount to rape. The consent is not given under misconception of fact that the accused would marry the complainant in future as a false promise is not a “fact” within the meaning of Indian Penal Code. So, the said act does not come within the ambit of Section 375 of Indian Penal Code which defines “Rape”.
3. Lack of Resistance:- The Court has drawn a distinction between rape and consensual sex. When the couple indulged in sexual intercourse and the woman did not raise any objection at that stage and made no complaints to anyone and voluntarily became intimate with the accused. The Court considers that the physical relationship between the parties had clearly developed with the consent of the complainant as there was neither a case of any resistance nor had she raised any complaint at any time. So, the lack of resistance become a proof that the sexual intercourse was consensual and not a rape committed by the accused as alleged by the complainant.
4. Delay in Filing of FIR not Satisfactory:- If there is delay in filing of FIR and that delay is not satisfactory or explained, it can be conferred that the complaint made by the prosecutrix is concocted and unreliable as it suffers from various contradictions and inconsistencies. It is the duty of the court to test the veracity of the prosecution story as the delay in FIR is unexplained and hence, the story of the complainant becomes unreliable.
5. Sexual Intercourse between the alleged Accused and the Complainant existed for over a period of time:- The long time period of physical relationship shows that the physical relationship between the accused and the complainant was consensual and this can be proved by the fact that the complainant and the accused were in a relationship for over a period of time.
6. False Allegation by Complainant to Hide or cover-up own fault of Adultery:- In most of the cases where a woman is married and have consensual sex with the man, the woman falsely alleged the man of committing rape if the spouse of the woman accidently came to know about physical relationship of his wife with some another man. The false accusation by the complainant is just to hide or cover up her own act of adultery and hence, it cannot be said as rape as it is a false allegation of rape after having consensual sex with the accused.
7. Medical Evidences:- The best legal remedy available against the false accusation of rape after having consensual sex is medical examination. If the women put the blame by arguing that she was intoxicated or drugged by the accused then in medical reports of the complainant it would be clear that the accusation of the complainant is false and she is lying.
8. Complainant is Major and competent to give Consent:- It is clear that consensual sex with the minor is said to be committed rape irrelevant of the consent given by the minor girl but in case where the woman is an adult and is capable to communicate her consent and competent to give her consent then the consensual sex with the accused by major woman who is competent to give consent cannot be said as rape.
9. Physical Relationship with Consent as Evidenced by Multiple Periods of Visits to different places:- After having consensual sex with the accused, in case of false allegation of rape by the complainant the legal remedy available to the accused is to prove the physical relationship with the woman with consent as evidenced by the multiple periods of visit to different places they were gone to. This can be used as evidence by the accused in his favour to prove the consent of the women.
10. Falsely implicated by complainant with Sole Intention to Extort Money:- The accused can argue that the false allegations are implicated by the complainant with the sole motive to extort the money by the accused after having consensual sec with the accused. The accused can prove that the complainant is habitual and the same act has been done by the complainant in the past and she does it only to extort the money.

Case Laws on against False Accusation/Allegation of Rape after the Couple had Consensual Sex
Dhruvaram Murlidhar Sonar v. State of Maharasthra [(2009)18 SCC 191]:- The facts of the case were as such that the complainant was a widow and the accused was married but planning to divorce his wife. Both of them started living together as husband and wife and had physical relationship and accused had promised to marry the complainant but after sometime the complainant got to know about that the accused is marrying another women and then she filed rape case against the accused. The Hon’ble Supreme Court held that “there is obvious distinction between rape and consensual sex. There’s no passive submission by the complainant, she had taken a conscious decision after active application of mind. There was a tacit consent”.

Deepak Gulati v. State of Haryana [(2013)7 SCC 675]:- In this case the prosecutrix was major and had sexual intercourse with the accused and also cohabitated with him for over a period of time. The Hon’ble Supreme Court held that “the complainant is major and mature to know what she is consenting to, as there’s neither a case of resistance nor she had complained anywhere at any time despite the fact she had travelled with the accused from time to time. It is not possible to comprehend the circumstances in which a charge of rape can be levelled against the accused”.

Pramod Kumar v. State of Bihar [ (2007)7 SSC413]:- In this case the accused had physical relationship with the complainant on the promise that he would marry her and afterwards married her but then he denied the fact that he had sexual intercourse with her and married her. The complainant accused him of rape saying that the consent was not voluntary and given under misconception of fact. The Hon’ble Supreme Court in this court held that “if a full grown girl consents to the act of physical relationship on a promise of marriage and continues to involve in same activity till she becomes pregnant it is an act of promiscuity on her part and not an act provoked by misconception of fact”.

Pramod Suryabhan Pawar v. State of Maharashtra [(2019) 9 SCC 608]:- The Hon’ble Supreme Court held that “ consent is an act of reason coupled with deliberation. It indicates an active will in mind of a person to allow the doing of the act complained of”.

Shivashankar v. State of Karnataka [(2019)18 SCC 204]:- In this case the complainant and the accused were living together as husband and wife for 8 years but afterwards when the accused refused to marry the complainant, she lodged the FIR under section 375 of Indian Penal Code. The Hon’ble Supreme Court held that “it is hard to hold physical relationship in the course of a relationship which has continued for eight years, as rape especially in case where complainant herself accepted that they were living as husband and wife”.

Thus, a proper criminal lawyer advice who has a vast expereince in dealing with criminal cases is inevitable. Further, contesting anticipatory bail application is also a difficult task. Generally Courts in India adopt a very strong hand in dealing with rape cases.

It can be concluded that consensual sex cannot be termed as Rape. To attract the penal provision of Rape, its essential to show that consent was not given or obtained fraudulently or under a misconception of fact. Consensual sex means sexual intercourse with consent. Hence, cannot amount to rape.
Authored By: Adv. Anant Sharma & Anjali Swami