Category: SEXUAL OFFENCES

ISSUE:

Whether submission to do the act due to pressure can amount to giving consent?

RULE:

A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted.

Consent implies the exercise of a free and untrammeled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.

ISSUE:

Whether the appellant one named Tukaram had committed an offense under Section 354 of the Indian Penal Code and the second appellant named Ganpat under Section 376 thereof?

RULE:

It was, therefore, incumbent on the prosecution to prove all the ingredients of Section 375 of the Indian Penal Code. The High Court has not given a finding that the consent of the girl was obtained by putting her in a state of fear of death or of hurt. Therefore, the third clause of Section 375 will not apply. There could be no fear because the girl was taken away by Ganpat right from amongst her near and dear ones.

ISSUE:

Whether the appellant could be held liable for the offense of rape under section 375 of the IPC?

RULE:

The consent does not merely mean hesitation or reluctance or a “No” to any sexual advances but has to be an affirmative one in clear terms.

In the present case, the appellant has not been communicated, or at least it is not known whether he has been communicated that there was no consent of the prosecutrix.

ISSUE:

Whether Section 377, in so far it criminalizes consensual sexual activity of two adults of the same sex in private, is violating Article 21( Right to life and personal liberty) guaranteed by the Constitution of India?

RULE:

Section 377 of the Indian Penal Code.

ISSUE:

Whether the pamphlets could be considered obscene?

RULE:

Is one justified in doing that which clearly would be wrong, legally as well as morally, because one thinks that some greater good may be accomplished? The court viewed that to adopt the affirmative of that proposition would be to uphold something which, in the court's sense of what is right and wrong, would be very reprehensible. To accomplish something good, it has to be done in a lawful manner.

ISSUE:

Whether one should use Hicklin’s test or Community standard test to determine and demarcate a line between what is artistic and obscene?

RULE:

It is necessary that a balance should be maintained between "freedom of speech and expression" and "public decency or morality"; but when the latter is substantially transgressed the former must give way. In other cases, obscenity may be overlooked if it has a preponderating social purpose or profit.

ISSUE:

Whether the picture on the cover page of the magazine could be said to be obscene?

RULE:

A picture of a nude/seminude woman, as such, cannot per se be called obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire. The picture should be suggestive of a depraved mind (sic) and should be designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted.

Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.”