Part -1
The argument that came to the fore is seriously notable, regarding India's Marital Rape law.
First argument: what is rape according to IPC?
The second argument is What is marriage according to IPC.
Section 375 of the Indian Penal Code defines rape as "non-consensual sexual intercourse with a woman". However, it exempts the husband from any penal consequences if he forces intercourse on his wife without her consent, given that his wife is above the age of 15 years. The 15 years bit was written down to 18 years by the Supreme Court. Marriage in India under the law means irrevocable implied consent.
In the case involving the issue of "marital rape", the Chhattisgarh High Court held that "sexual intercourse or sexual act by a man with his wife, the wife not being under 18 years of age, is not rape."Although the man has been discharged of the offence of marital rape, the high court has upheld charges framed against him under Section 377 (unnatural sex) of the Indian Penal Code (IPC). August 26, IndiaToday
August 13, 2021, India Today Forced sex in marriage: Cannot call it illegal, says Mumbai court, grants bail to accused husband. A woman in Mumbai alleged that her husband forcefully had sex with her, which resulted in her paralysis. However, the court said that it is not an illegal act and granted the accused anticipatory bail.
The woman got married on November 22, last year, has told the police that after the wedding, her husband and his family started putting restrictions on her and also made taunts, abused her and even started demanding money. The woman alleged that a month after the wedding, the husband had sex with her against her wish. On January 2, the couple had gone to Mahabaleshwar, a hill station near Mumbai, where he did it again. After that, the woman alleged that she started to feel unwell and went to see a doctor. The doctor informed her that she had suffered paralysis below her waist. after this, the woman registered an FIR in Mumbai against her husband and others. the husband and his family said that they were being falsely implicated in the offence and that there was no demand for dowry.
Mumbai Additional Sessions judge Sanjashree J Gharat said
"being the husband cannot be said that he committed any illegal thing". "It is very unfortunate that the young girl suffered paralysis. However, the applicants (husband and family) cannot be held responsible for the same. Looking into the nature of allegations made against the applicants, custodial interrogation is not required. The applicants are ready to cooperate during the course of the investigation." 
In a judgment, a division bench of justice A Muhammad Mushtaq and justice Kauser Edappagath of Kerala High Court: Marital rape is sufficient ground to claim divorce,
"A husband's licentious disposition disregarding the autonomy of the wife is a marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty. Marital rape is alien to our penal jurisprudence."
" The right to respect his or her physical and mental integrity encompasses bodily integrity. Any disrespect or violation of bodily integrity is a violation of individual autonomy."
"Merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce."
"The case in hand depicts a story of the struggle of a woman within the clutches of law to give the primacy of choice “not to suffer” in the bondage of a legal tie. An insatiable urge for wealth and sex of a husband had driven a woman to distress. In desperation to obtain a divorce, she has forsaken and abandoned all her monetary claims. Her cry for divorce has been prolonged in the temple of justice for more than a decade (12 years)."
"She still awaits a final bell to answer her prayers and cry. She is unable to digest the delay involved in responding to a request for the separation. Perhaps we are accountable for her tears. We see this is not a solitary instance. On a day-to-day basis, we see many many like her. Her whimper touches our conscience. We shall advert to this enigma while concluding this judgment." (August 6, 2021, India Today) Here we can conclude a few points:
1) the word "marital rape" is recognised by the court,
2) If a wife feels marital sex is rape she can find a ground for divorce. A story of a struggle of a woman within the clutches of law to give the primacy of choice - “not to suffer”, in the bondage of a legal tie;
3) Marital rape is alien to Indian penal jurisprudence;
4) The right to respect his/her physical and mental integrity encompasses bodily integrity. Any disrespect or violation of bodily integrity is a violation of individual autonomy;
5) Marital rape as a form of cruelty to grant a divorce;
6) Finally, the judges are accountable for women's tears. The Judges see this is not a solitary instance. On a day-to-day basis, they see many such incidences. Women's whimpers touch judges conscience.
7) Court can arbitrarily use Section 377 (unnatural sex) to punish men when wife complains of marital rape.
A story of a pregnant woman:
Citing mental health, marital rape, Bombay HC allows the domestic violence victim to end pregnancy
Bombay High Court has granted permission to a domestic violence victim to terminate her pregnancy.
The Bombay High Court has granted permission to a domestic violence victim to terminate her advanced-stage pregnancy. The woman had told the high court that pregnancy happened on account of rape by her abusive husband. The Bombay High Court observed that in the present case, it was not disputed that the woman was a victim of domestic violence. The woman was also seeking a divorce from her husband. She pleaded that in the event the child was born, she would not receive the financial and emotional support of her husband and in the absence thereof, it would be difficult for her to raise the child as she did not have any source of income.
“The core issue is the control a woman has or exercises over her own body and reproductive choice. Control over reproduction is a basic right of all women.”
“Linked as it is to women’s health and social status, it is from the perspective of poor women or women of rural areas that this right can be best understood.”
The court further observed that the husband had indicated that he would not share the burden of raising the child while the woman had no income of her own.
“In such circumstances and taking an overall view of the matter, we are of the view that declining permission [of abortion] to the woman will compel her to continue with her pregnancy which in the circumstances will not only become extremely burdensome and oppressive but has the potential to cause grave injury to her mental health.”
To be noted:
In a family, Where a husband is the only breadwinner, there, the wife can not claim, "Control over reproduction is a basic right of all women.” because the woman can not force a man to bear the extra burden. Anything binary should be consulted and shared.
Marital rape grounds to claim divorce: Kerala HC's landmark judgment.
Rinku Nana Pardhi, Age: 18 years, Occu. Education
Mohit Subhash Chavan, Age: 23 years, Occu. Service
Dharangaon, Tq. Dharangaon, Dist. Jalgaon
The applicant, who was then still less than 18 years of age, set the criminal law in motion by filing an FIR on 17.12.2019 on the basis of which the offence was registered under Sections 376, 417, 506 of the Indian
Penal Code and under Sections 4 and 12 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”, for short) against Mohit.
Apprehending his arrest, Mohit filed an application seeking anticipatory bail before the Sessions Court, Jalgaon
Rinku was studying in 9th standard in the year 2014-2015, age was 16years of old. Mohit then was 21 years old, started stalking her. Since he was her distant relative, he used to keep coming to her house. During that period, he clandestinely effected an entry into the house from a backside door and committed rape on her, and threatened her of consequences if the incident was disclosed. Pertinently, she alleges that he used to come frequently to her house and used to have sexual intercourse. She has also stated that sometimes, he used to use contraceptives.
It also said the man had threatened to throw acid on the girl’s face if she told anyone about the incident, according to Bar and Bench. The man reportedly raped the complainant 10 to 12 times.
When the girl along with a social worker and her mother went to lodge a report with the Police Station, the mother of Mohit Chavan somehow persuaded them not to complain by promising that she would accept her as her daughter-in-law. The girl further alleged, even Mohit's family once got executed a written promise, on a stamp paper of Rs.500/- (the writing also bears Mohit's signature and signature of his mother) from her illiterate widow mother, stating that there was an affair between the two with Rinku's consent. They both had indulged in sex. Since Rinku was still a minor, the marriage would be performed after she completed 18 years of age. Chavan’s mother then promised them that she would have her son married to the girl once she turned 18. However, the man refused to marry her and a complaint was filed against him. source: Mar 01, 2021, scroll
A first information report against him was filed in 2019 for charges under Section 376 (punishment for rape), 417 (punishment for cheating), 506 (punishment for criminal intimidation) of the Indian Penal Code. It also includes Sections 4 (punishment for penetrative sexual assault) and 12 (punishment for sexual harassment) of the Protection of Children from Sexual Offences Act.
Chavan, who is a technician with the Maharashtra State Electric Production Company, had submitted anticipatory bail that if he is arrested and detained in police custody under criminal charges for a period of 48 hours, then according to the state service rules “he shall be deemed to have been placed under suspension by an order of appointing authority”, India Today reported. The court granted the accused interim protection from arrest for four weeks and said that he could apply for regular bail.
Here, a notable point: the girl is 16 years old, the boy is 21 years of age. Both are young, the difference of 5 years gap. At such an age, it is a universal phenomenon between opposite sexes.
The story says, The girl lodged an FIR on 17.12.2019, not when the rape happened. It is a case of breach of trust, not rape.
From the detailed story, a judge can ask (the chief justice asked ) Chavan’s counsel: “Will you marry her?”
I don't see anything wrong with the question.
But Indian people- the women- want to exercise their misandry and prejudice about patriarchy. They raised voices terming the CJI's question a controversy. It seems they want anyhow punish the man. It's absurd!
CJI granted Mohit protection fromarrest for four weeks, and allowed him time to
file a bail plea in the “appropriate forum” considering his young age and his government service, as a technician in the Maharashtra State Electricity Production Company LTD. His arrest and detention in police custody under criminal charges can cause him to lose his job before the case gets a final verdict. Protecting for four weeks does not mean Mohit being exempted from the offence. So, Why uproar from women's side? Women's anger just expose them they are unruly mobs,
Another story: False marriage promise: March 1, 2021
The complainant was represented by advocate Aditya Vashishth and the accused, Vinay Pratap Singh, by senior advocate Ms Vibha Dutt Makhija.
The court was hearing a petition filed by Vinay Pratap Singh challenging the Allahabad High Court order of 2019 rejecting his plea to quash the FIR registered against him at Gautam Budh Nagar district in Uttar Pradesh.
As per the complaint, A woman who had been in a romantic relationship and were living together, with Singh for over two years registered a rape complaint against him. She complained she has refused to enter into a sexual relationship till marriage. She claimed that Singh obtained her consent by fraud in February 2014. They went to Manali where they performed all the marriage rituals in the Hidimba temple as per her advocate Aditya Vashishtnath mentioned. However, the accused denied all the allegations.
“If a couple is living together as man and wife, the husband may be a brutal man, but can you call the act of sexual intercourse between a lawfully wedded man and wife as rape,” asked Chief Justice of India SA Bobde.
“Making a false promise of marriage is wrong. No one should falsely promise marriage and break off. But that is different from saying that the act of sexual intercourse is rape,” noted the apex court bench.
In the complaint, the complainant woman had also claimed that she was brutally exploited by the man. She added that she had to visit the hospital due to injuries in her private parts. The complainant cited another incident where her leg was fractured.
“Then you file a case for assault and marital cruelty. Why file a rape case,” asked CJI Bobde.
Advocate Ms Vibha Dutta Makhija appearing for the accused, contended, “It’s a habitual act of this lady. She had committed this act with two others in office.”Makhija said that offence under section 376 (rape) of the Indian Penal Code (IPC) has been added in the FIR to harass the man.
The petitioner alleged that the complainant woman had also asked the wife of the accused to kill him if she wants to stay happy in her life. Makhija argued that the complainant woman lodged the FIR under Section 376, Section 504, and Section 506 of the Indian Penal Code after he refused to give her money.
The top court granted him protection against the arrest for eight weeks but refused to pass any order to quash the FIR. “You apply for discharge from the case in the trial court after evidence is collected,” the bench said.
Two observations made by the Supreme Court have sparked a huge debate. Both the observations were made by the Chief Justice of India SA Bobde
Creating a controversy safely or accusing superior officials wrongly with the help of media is a trend in India. This type of sensation makes ordinary people famous and achieve monetary gain.
In the supreme court, 1st March 2021, a case was a hearing date, a bail plea of 23-year-old Mohit Subhash Chavan, who is a technician with the Maharashtra State Electric Production Company. The Aurangabad Bench of the Bombay High Court had cancelled his anticipatory bail his counsel said.
The bench, comprising Justices Bopanna and Ramasubramanian, headed by CJI Bobde had asked the accused, “Are you willing to marry her? If you are willing to marry her then we can consider it, otherwise you will go to jail, observed the bench. We are not forcing you to marry.”
CPI(M) politburo member Brinda Karat had written to the chief justice asking him to withdraw his remarks reportedly made during the March 1 hearing on the anticipatory bail plea of the accused.
on 8th March, while the bench was hearing a case of a pregnant rape victim seeking a nod to abort the foetus, referring to the earlier case, the SC bench said on Monday, “Even in the last occasion there was no suggestion from any of us that you should marry. I checked there was no marital rape case before us.”
"We do not remember any case of marital rape was before us ...We have the highest respect for women."
"Our reputation is always at the hands of the bar," the Chief Justice of India said
Chief Justice of India S.A. Bobde claimed on Monday “complete misreporting”
“We have given highest respect to womanhood. We asked are you going to marry. We didn’t order (him to) marry,” CJI Bobde said.
The Bar Council of India had backed the
Supreme Court and asked activists who had written to the CJI to withdraw his
remarks not to "scandalise" the highest judiciary and take
"political mileage" of its proceedings.
Solicitor general Tushar Mehta too
agreed that the CJI had been quoted out of context. “You asked a question in a
different context. You were quoted out of context,” he said. The CJI then asked
Mehta to read out Section 165 of the Indian Evidence Act, which states:
“141. Judge’s power to put questions
or order production –
The Judge may, in order to discover or to obtain proper proof of relevant
facts, ask any question he pleases, in any form, at any time, of any witness,
or of the parties, about any fact relevant or irrelevant; and may order the
production of any document or thing; and neither the parties nor their agents
shall be entitled to make any objection to any such question or order, nor,
without the leave of the Court, to cross-examine any witness upon any answer
given in reply to any such question.”
“You were completely in sync with
mandate of Section 165 of the Evidence Act,” Mehta responded.
Source: wire
This is the way, through some court cases, the word 'Marital Rape' snatched by media and feminists, as a soccer ball is thrown to the field aiming to contest and win as feminist's empowerment.
Now Everyone has to look deep into the threshold of marriage. What marriage is and what relations and agreements both sexes bring for tieing a knot.
