Delhi High Court: DNA Proves Sexual Intercourse, Not Consent

What happened?

• The Delhi High Court recently considered an appeal against the acquittal of a man accused of rape.
• The woman alleged that the accused had sexual relations with her without her consent, including an allegation that she was under the influence of an intoxicating substance during one incident.
• She later became pregnant and gave birth to a child.

What did the DNA test show?

A DNA test of the woman, accused and child established that the accused was the biological father of the child.

However, the Court made an important distinction:

DNA can establish sexual intercourse or biological paternity, but it cannot by itself establish whether the sexual act was consensual or non-consensual.

In simple words:

DNA can tell “who had the sexual relationship”, but it cannot tell “whether the relationship was forced or consensual.”

What did the accused say?

• The accused accepted that he had a physical relationship with the woman, but claimed that it was consensual.
• Therefore, the main issue was not whether sexual intercourse had occurred. The real question was:
• Was the sexual relationship without the woman’s consent?

Why was the accused acquitted?

• The Trial Court found important inconsistencies and improvements in the woman’s version regarding the circumstances of the alleged incidents.
• The High Court examined the evidence as a whole and found that the Trial Court’s conclusion was a possible and reasonable view of the evidence.
• Since the prosecution could not establish the charge beyond reasonable doubt, the acquittal was upheld.

What did the High Court say about delay?

• The Court made it clear that delay in reporting sexual assault, by itself, does not make the allegation false.
• Similarly, a survivor’s behaviour should not be judged using stereotypes.
• However, the Court can consider the overall circumstances, consistency of the testimony and other evidence while deciding whether the prosecution has proved its case.

The most important point

Pregnancy + DNA evidence ≠ automatic proof of rape.

DNA may establish:

Accused → Biological father → Sexual relationship established

But rape requires a separate determination regarding:

Was there consent?

Why is this case important?

The judgment highlights a basic but important principle:

Proof that sexual intercourse occurred is different from proof that it occurred without consent.

The Court therefore has to examine all the evidence, rather than treating DNA or pregnancy as conclusive proof of rape.

Final outcome

The Delhi High Court dismissed the appeal and upheld the man’s acquittal.

Consent in Sexual Relations: What the Law Says

Under Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023, rape is not merely about whether sexual intercourse occurred. The circumstances in which it occurred are crucial.

1. When is sexual intercourse consensual?

Sexual intercourse is generally consensual when a person:

• voluntarily agrees to the sexual act;

• understands what they are agreeing to; and

• is capable of giving that consent.

In simple words:

Consent = free and voluntary agreement.

The existence of a relationship, marriage, friendship or previous sexual relationship does not automatically mean consent for every subsequent sexual act.

2. When does sex become non-consensual/rape?

Under Section 63 BNS, sexual intercourse can amount to rape when it is:

• against the woman’s will;

• without her consent;

• obtained by putting her or another person in fear of death or hurt;

• obtained when she is unable to understand the nature and consequences of the act because of unsoundness of mind or intoxication/stupefying substance;

• with a girl below 18 years, irrespective of consent; or

• when she is unable to communicate consent.

3. Very important: Consent is different from mere absence of resistance

A person not physically resisting does not automatically mean consent.

The important question is whether there was voluntary agreement to the sexual act.

Similarly:

Silence ≠ automatically consent
Previous relationship ≠ permanent consent
Pregnancy ≠ proof of consent or rape
DNA ≠ proof of consent or rape

4. How does this connect with the Delhi HC case?

This is the central point of the judgment:

DNA established that the accused was the biological father of the child.

Therefore, it provided evidence of a sexual relationship.

But the Court still had to determine:

Was that sexual relationship consensual or without consent?

DNA cannot answer this question by itself.

The Court therefore examined the woman’s allegations, the accused’s defence, inconsistencies in the evidence and the circumstances surrounding the alleged incidents.

5. Simple example

Suppose:

A + B have consensual sexual relations → DNA can establish that sexual intercourse occurred.

But if:

A forces B → DNA may again establish intercourse, but DNA alone cannot establish that A forced B.

The issue of consent has to be determined from all relevant evidence and circumstances.

6. One important exception

For a person below 18 years, consent does not make the sexual act legally permissible under Section 63 BNS. The statute expressly treats sexual acts with a girl under 18 as rape with or without her consent.