Bombay High Court says entering a hotel room does not mean ‘consent to sex’

In a significant ruling, the Bombay High Court at Goa recently dismissed a March 2021 order passed by a Margao Trial Court and said that a girl booking and entering a hotel room with a man does not implicate her consent to sexual intercourse.

The Trial Court had discharged a man from rape charges remarking that since the girl was involved in booking the hotel room, it meant that she also gave her consent to engaging in the sexual activity that took place in that room.

“Therefore, the accused Gulsher Ahmed cannot be charged with rape,” the trail court had said.

However, the Bombay High Court recently observed that the trial court judge "clearly committed an error" by making such a remark.

A single-judge bench of the High Court led by Justice Bharat Deshpande in his order wrote, "Drawing such an inference is clearly against the settled proposition and specifically when the complaint was lodged immediately after the incident. Even if it is accepted that the victim went inside the room along with the accused, the same cannot by any stretch of imagination be considered as her consent for sexual intercourse."

Justice Deshpande opined that the trial court mixed up two aspects in its order—one is that she went inside the room with the accused of her own will, and the other is her giving consent for the activity that took place inside the said room.

He observed that the victim's actions that followed immediately after she exited the room are of great significance, as they indicate that she did not consent to any such sexual act.

"The action on the part of the victim immediately after coming out of the room and that too crying, calling the Police, and lodging a complaint on that day itself shows that the overt act allegedly carried out in the room by the accused was not consensual," the judge was quoted as saying.

Additionally, the court noted that the hotel employees also narrated the entire incident.

The accused even argued that the victim had no qualms about booking the hotel room and even had lunch with him before entering the room indicating that she gave consent to sexual intercourse. However, Justice Deshpande dismissed this submission.

"It is no doubt true that there is material to show that the accused and the victim were instrumental in booking the room, however, that would not be considered as consent given by the victim for the purpose of sexual intercourse," the judge remarked.

The incident took place on March 3, 2020, when the accused promised to get the victim a private job in a foreign country.

He reportedly took her to a hotel in Margao, saying that they would meet an agent for the job. This led them to book a hotel room together.

However, according to the victim, the accused threatened to kill her soon after they entered the room and then raped her. When the accused went to the bathroom, she came out running from the hotel, in tears. She then called the police, resulting in the immediate arrest of the accused.

Police booked Ahmed under Indian Penal Code (IPC) Section 376 (rape) and 506 (criminal intimidation).

Dismissing the trial court's order, Justice Deshpande reinstated the trial against the accused.