A ‘yes’ for sex is actually a ‘no’ if the woman is drunk, said the Bombay High Court on Saturday, February 18. The court has held that “a woman, when intoxicated, is incapable of giving a free and conscious consent to a sexual relationship.”

So, even if the woman consents to a sexual relationship, it will not be considered valid or as an “excuse for committing rape”, reports Hindustan Times

The court that said if a woman says “No” to sexual intercourse even once, it clearly indicates that she is unwilling. Any sexual intercourse after her denial will be considered rape. For sex to be consensual and not considered rape, the woman must be in her right senses to freely and unambiguously say ‘yes’.

b’Bombay High Court’

The judgment came when Justice Mridula Bhatkar rejected the bail plea of a Pune resident who is accused of raping a colleague. The man, Abhinaya Sahi, allegedly gangraped ​a 24-year-old woman, along with two of his friends, after spiking her drinks, reports DNA.

Sahi’s advocate had argued that the woman had consented to have sex, and had also consumed alcohol on her own will. He claimed that she had four servings of a cocktail, after which the accused had taken her to his friend’s flat.

However, Justice Bhatkar said that if a girl is intoxicated, it means she isn’t mentally capable of giving ‘free and conscious’ consent. 

“In case of rape, a ‘No’ from a woman means she is not willing, but if she says ‘Yes’, it should be free and conscious. Not every ‘Yes’ is covered under the ‘valid’ consent, defined under section 375 of the Indian Penal Code” said the court.

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It added that rape committed under intoxication cannot be an ‘excuse’ for a man. The judge also clarified that the term ‘without a woman’s consent’ has a wider meaning and covers a broader area of her wish to have sexual intercourse, adding that “silence, or uncertainty” in itself, cannot demonstrate consent.

However, the rape survivor denied having consumed alcohol knowingly. She alleged that the petitioner had spiked her drinks and that she had lost consciousness after which he brought her to his flat.

Though there were conflicting statements from the waiter at the restaurant and other witnesses, Justice Bhatkar said that if the victim was drunk and could not even walk, why had the accused not driven her back to her own house, and had instead taken her to his friend’s home?

She, however, granted bail to two others accused in the case.