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Report No. 84

III. Consent: Its Significance

2.5. Absence of consent.-

The statutory definition1 of rape in India emphasises the element of absence of consent. In fact, absence of consent is an important aspect of the actus reus of the offence. Barring cases where consent is irrelevant and the age of the girl is the only crucial factor (because of the statutory requirement of minimum age), want of consent becomes, in practice, a determining factor in most prosecutions for rape. It is also the factor to which the law has devoted the most detailed attention-as is manifest from the elaborate rules and refinements that are to be met with in various clauses of the statutory definition of rape, and from the richness of material to be found in case law and lengthy discussion on the subject to be found in academic writings.

1. Para. 2.2, supra.

2.6. Consent is the antithesis of rape. Even if some may find any discussion on consent as too complicated, the matter cannot, consistently with the needs of the subject, be put in simple one-phrase formulation. When circumstances in life present an infinite variety, the law must be well-equipped to deal with them. Nuances of consent are therefore, unavoidable.

Rape and Allied Offences - Some Questions of Substantive Law, Procedire and Evidence Back

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