Consensual sex does not amount to rape, child is the victim, Madras High Court

Madurai Bench of Madras High Court while relieving an accused from the rape charges on grounds that the consensual sex is not amounting to rape, mentioned that the child born out of wedlock is the real victim. The court directed the accused to deposit Rs 5 lakhs as compensation for the child and entitled the child to benefits from the accused under Civil Law.

Madurai (Tamil Nadu): The Madurai Bench of Madras High Court ruled that consensual sex does not amount to rape but observed the child born out of wedlock is the victim. The court while relieving the man from rape charges sentenced him for cheating and directed him to pay a fine of Rs 5 lakh within three months after the sentence. The fine amount would be deposited as the fixed deposit on the child in any nationalised bank, the court said in its order.

Madurai Bench heard the appeal of one Malaisamy from Ramanathapuram as he challenged the order of Fast Track Mahila Court, Ramanathapuram which sentenced him to 10 years of rigorous imprisonment under IPC sections 376 and 417 on charges of raping a girl on promises of marriage and impregnating her.

In 2010, Malaisamy was in a relationship with the girl and he had a physical relationship with her for over six months on the promise of marrying her. When he refused to marry her after she got pregnant, the family filed a complaint with the Abiramam police station. Malaisamy was booked under IPC 376 for rape and 417 for cheating and under section 4 of Tamil Nadu Prohibition of Harassment of Women Act. The trial court acquitted him from section 4 of the Tamil Nadu Prohibition of Harassment of Women Act but found him guilty under IPC 376 and 417.

Meanwhile, the woman gave birth to a male child and the DNA test was provided to the court as important evidence.

High Court Judge Justice R Pongiappan hearing the case ruled that the girl gave her consent. Being a grown-up girl, knowing the consequences, permitting the accused for sexual intercourse for six months reveal that she is a consenting party to the alleged offence committed by the accused. Only in the circumstances, if the prosecution proved that the defendant knew that the woman did not want to have sexual intercourse or was reckless as to whether she wanted to or not, then, the accused should be guilty of rape, the court ruled.

In strong words, the court observed that the child due to the act committed by the girl and the accused loses the status of a legitimate child and without committing any mistake, it is branded as a bastard. Therefore, the victim child has to be compensated, the court ruled.

The accused Malaisamy found guilty under IPC 417 for cheating would undergo the punishment of one-year rigorous imprisonment. He should deposit Rs 5 lakhs to the Sessions Judge of Fast Track Mahila Court within three months after undergoing imprisonment. The sessions judge is directed to deposit the money in Fixed Deposit in any of the nationalized banks in favour of the minor child.

The fixed deposit has to be renewed till the minor child attains maturity. The mother of the child is permitted to withdraw the interest accrued once in three months directly from the bank without filing any formal application before the trial court and utilize the same for the welfare of the child. The court also ruled that the victim child is entitled to receive benefits from the accused under Civil Law.

The court ordered any bail bond if submitted by the accused stands cancelled and the trial court was directed to secure Malaisamy and send him to prison to undergo the remaining period of sentence.

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