Abstract
In recent years we have seen a large number of cases of rape, but in latest years we have seen many cases of marital rape or the cases of rape coming from a relationships where woman and man are in relation of boyfriend and girlfriend, the one thing which is seen in this case is the non-consensual activity by a man on his partner. In any kind of sexual relation between man and woman requires a complete consent is required from both the side and if the consent was given by the woman initially but later she refused for the same but still man forces her for any sexual activity without her consent then he will be accused of rape under the Section 376 of the Penal Code and it cannot be defined as a consensual activity between partners. This research paper reinvestigated one of the recent cases on the same issue where a man forces himself on her and indulged her into an unnatural sex and later filed a petition in the court for quashing a complaint filed by woman against him under rape charges. This research paper delves into other cases also which shows the same kind of offences found in this case and gives a brief explanation about these cases and the judgement given by the court on these cases. This research paper will answer many questions like what was the case. , what was the judgement given by the court. , why are the cases discussed below are different from the case reinvestigated in the research paper. It will also explain the type of methodology used for this paper for the investigation of this case. This paper will explain all the important statue, section and article under which these offences are discussed. This research paper objective is to conscious people about these types of cases and help them to understand these more clearly
Keyword: Rape, Martial Rape, Non-Consensual activity, Section 376, Indian Penal Code, 1860, Consent.
Introduction: History of the case
In recent few years marital rape and rape cases has been seen a lot recently in India because in this country people believe that after marriage or after coming into a relationship man having sexual intercourse with his partner is considered as their right even though their partner shows her constant disagreement for the act. They believe that it is their right and they can use their partner to satisfy their sexual needs and it is considered as normal in the society. They failed to understand even if the person is married to the woman or is in a relationship with her, it still does not give them right to force himself on her for their own need and it is defined as crime under the law. Even if the couple is married or in a live-in relationship and woman agreed to form any kind of sexual relationship with her partner initially but denied later and man still forcing himself upon her will be considered as a non-consensual activity. It can only be considered as consensual activity when a man asked about it from his partner and she gives her complete consent without any influence. People failed to understand that even if they are in a relationship with the other person then also it does not give them a right to force the other person for any sexual activity. Treating these act normal leads to huge number of cases like this where women’s are sexually being exploited by their partners just to satisfy their sexual needs. In recent years people started having a live-in relationship which somewhere leads to the increase in the number of these cases because in these cases the partner usually present a general statement that the other partner agrees for the physical relation initially and denied later in which they fail to understand that even if she agrees to form any physical relation at the beginning and even though they had intercourse for multiple time and she denied later for the activity and him forcing himself on her will still be considered as an offence of rape. The government and judiciary should take some influential steps to stop these cases and should treat it as important
This research paper talks about one of the latest case happened in Maharashtra regarding the same issue where a woman filed a complaint against her boyfriend on 26 November, 2023 at Karad Taluka police station, Satara of rape as he forcefully tries to have a sexual intercourse with her, but later her boyfriend filled a petition for seeking quashing and setting aside of case registered for the offences punishable under Section 376 which states the 7 years of imprisonment or a lifetime imprisonment and a fine also, 376 (2)(n) which states that that the partners having live-in relationship and man tries to force woman for any sexual intercourse then he will be charged for the offence of rape, 377 it states that whoever had a carnal intercourse against the nature of law will be imprisoned for 10 years ,504 and 506 these section states that if any person activity like abusing, insulting or humiliating the other person provoking that person to disturb the public peace or commiting any person, the person for the cause will be punished with the imprisonment under the Penal Code 1860,(IPC)
In this case woman in her FIR registered by the police states that she had a Khulanama with her husband as per the Muslim religion and was residing with her four year old on. In 2022 petitioner came to live next door and progressively voiced his love to the woman and promised to marry her. However he started persuading the woman for the sexual relationship but woman refused his demand she further added that she frequently refused for any sexual relationship with the man and one day he came to her house and forcibly had sex with her she further added that he also indulged her into unnatural sex with him. Woman later asked him to marry her and revel their relationship to the family, he promised her to do the same after getting job but he started isolating himself from her. When she confronted about the marriage to his family they negated for their marriage and told her that she is from the different religion and they can’t accept her, later on they started mortifying and threatening to kill her and her son in which the petitioner was also included.
In the court man’s advocate presenting his argument states that it was a consensual relationship which was countered back by the woman’s advocate Justice Gokhle stating that “It is trite to be consensual in the beginning of the relationship but the same state may not be remain for all the time so, whenever the partner shows the unwillingness to indulge into sexual activity, the character of relationship “consensual” ceases to exist
In the conclusion judges states that even though it shows the woman’s desire to marry man but it clearly shows that she was not inclined towards any sexual intercourse with the man .they further added that it was not a bona fide intent on a man’s part where he give an assurance to marry on which parties enjoyed intimacy but it did not fructify into marriage further elucidating they indicated that it is a type of case in which the apex court has distinguished false promise and a breach of promise by the accused, further including they states that they do not think the relationship between the complaint and the petitioner was consensual in respect of indulging into the sexual intercourse was consensual to justify the quash of the criminal complaint at brink.
Research Methodology
In this research paper, I implemented a doctrinal method for this research, this paper includes all the appropriate sections of the IPC, statues and argument and the decision taken by the Bombay High Court regarding the petition filed on the case Amol Bhagwan Nehru v State of Maharashtra and Anr. All the information gathered in the paper is gathered from the secondary sources like journals, articles and newspapers. This research is descriptive in nature delving into the decision of the Bombay High Court and the arguments presented by the division bench regarding the same.
Review Literature
- A case got registered in Madhya Pradesh High on 2 July, 2024 where a woman accused man under the offence of rape, This case was quashed by the High Court because they opined that the both individuals were well educated and had a consensual physical relation without any force and they had a physical relationship on their own will though they parted later, but it did not shows any sign of man forcing himself on her they both agreed on the relation and physical relation
In this research paper the case taken is slightly different because the man forced himself on the woman even after her constant denial and indulge her into an unnatural sex with her and it clearly shows that it was not a consensual relation
Nimeshbhai Bharatbhai Desai v State of Gujarat, (2 April, 2018)
- This case petitioned in Gujarat where a woman filed a complaint against her husband of martial rape, in which she added that her husband had forcefully performed an intercourse without her consent and not only abused her sexually but mentally also. In this case court was questioned whether this case can be counted as punishable crime under Section 367 of Penal Code, where a husband can have forceful intercourse with his wife when she is in a complete denial of it. The court by presenting their judgement stated that even though the man and woman was in a relationship it did not give any right to their partner to force themselves on her, if the husband request for any physical activity and wife denied it and husband forcing himself on her is taken as a non-consensual activity and he will be equally punished for the offence under Section 376 of Indian Penal Code
In this research paper the case discussed shows that the man and woman was not in any martial relation and it also shows the breach of promise on the part of man where man promises to marry the woman but later he refused and humiliated her.
Uday v State Of Karnataka, (2003)
- In this case a girl filed a complaint against the boy stating that the boy had sexual intercourse with her multiple times by promising her that he will marry her in future and got her pregnant but later denied, they both had sexual intercourse 15-20 times and every time he promised her that he will marry he. She got pregnant later and her family got to know about it, and they asked him to marry her he said that he will marry her after the construction of his house, later that night he asked her to come to his house and they will run away and get married but he didn’t come next day when she asked his cousin they said that he went to Sangli. After eight days when he came back and her brother asked him to marry her he refused to do so and said that he will handle all the expenses of her and the child but he cannot marry her. This matter came before the sessions court, judge accepting arguments from both side stated that the consent obtained by accused does not fall under the definition of consent explained in Section 375, but judge further added that it comes to the Section 90 of the IPC because the accused obtained consent from the prosecutrix while having a sexual intercourse was solely based on the false promises made by him to her of the marriage therefore the judge held that the accused had a sexual intercourse without her consent falls under 375 and he will be punished for the rape charges under Section 376
The case discussed in research paper highlights slight difference that is in the case discussed in this paper the man and the woman were not prosecutrix and even though man promised to marry to woman but later denied still woman never gave consent to man for any sexual activity and he forced himself on woman which clearly shows that it was a non-consensual activity.
Legal Challenges and Societal Beliefs
Lack Of Legislation Laws
- Rape being such a frightful and grevious crime still being ignored by our judicial system. It is such a vicious crime in a society and still no step is taken by the judiciary, and now it further changed into the biggest threat to the society which is referred as martial rape where women are not even safe in their own houses, where their husbands are being the biggest threat to their safety.
- One of the main problems to focus on is lack of specific legislation, it being one of the grievous crime and not even a single law is implemented on this crime of martial rape. The judiciary has explained it under the same sections of rape and not given any specific importance to it, they formed a law in which they prevent husbands from commiting this crime rather than making a law which can protect women being a victim of this non-consensual activity. More than punishing the accused judiciary focuses on the proofs and evidences, in any case of martial rape the burden of proof lies upon the victim where she needs to prove that the accused forced himself upon her ignoring the mental stability and trauma of the victim.
- Martial rape is significantly underreported due to lack of awareness, societal beliefs and fear of husband and spouse, the judiciary needs to focus on this factors and should aware the woman’s specially from rural areas that any sexual activity without her consent is being forced by her husband or her boyfriend is referred as rape.
Societal Beliefs and Attitudes
- More than lack of legislation laws, it is societal beliefs and attitude which is being the major reason of the high number of cases of martial rape. The society having such a casual attitude towards such crime is the significant reason why women are not taking stand for themselves, why they are being so afraid of talking about it and why they feel it’s normal, because from the ancient times it is told to the woman’s that their husband forcing himself on them is normal and not any crime, that whenever their husband ask them to indulge in any sexual activity it is their duty to fulfill their demand without any question even if they don’t want to agree with the same.
- Though this perspective has been changed with the change of time but still in many rural areas and still many people who follows this perspective and ideas, this changes has mainly been seen in urban areas where woman started taking stand for themselves but in urban areas this crime took a very different turn, in today’s time people follow the idea of live-in relationship and this new idea of dating leads to the excessive increase of this crime where boyfriends take a consent from their girlfriend by faking a promise of marrying to them.
- Woman of today’s era also are being afraid from coming forward because of being judged by the society, living in a generation of technology and computers people are still following those old norms and beliefs they still look down upon the woman living with her boyfriend, having sexual relationship with them before marriage and always point fingers on their characters, so many years of independence has been passed and we are still being tied with these norms.
Future Regulation and Legal Reforms
- Change starts when people start changing their perspective and this is what we need to end these cases in our society. To prevent and decline these cases the government and judiciary has to work together to form some new laws and implement them which will deal with these cases directly and treat them as important as it is and not only just a mere case.
- The first step should be taken by the legislation should be regarding the awareness of these cases especially to the womens in rural areas where they believe that it is their duty, the government should implement few campaigns and schemes through which they can understand the importance of their consent, through these scheme they should be aware about the woman helpline number through which they can ask for the help in their tough times.
- Government and judiciary should take steps towards training of new lawyers and judiciary where they can learn how to tackle these sensitive cases, so that it can be easy for them to tackle these cases, because sometimes it happens that judges and lawyers professional way of dealing with these cases portrays a very wrong image of the cases and the victims.
- Judiciary should implement some legal reforms and amendments where the definition of the consent in these cases should be clearly defined which state consent taken through fraud, manipulation and force cannot be treated as consent under the law.
- Legislation should take a step to implement a legal reform where it should not be explained under any section but a different section and law should be introduced under which this law should be explained and the punishment of this law should also be explained in very clear terms. These changes in laws will help the judiciary and the government and also the nation to tackle these cases and crimes in the country.
Suggestion
This types of cases are increasing and the judiciary needs to take a very powerful and a meaningful step toward these crimes, they need to stop treating the rape cases as an ordinary incident and should start taking it as a very influential case, there should be strict laws regarding
martial rape as it can be seen in many other countries they implemented very strict rules for these offences. First step government can take is to aware women about it especially women in rural areas to get aware about this issue a campaign can be run in rural areas where they can heir a female volunteer about it to those that fulfulling their partners sexual needs is not their duty and they can express their own consent about it to their and if they still force them for it they have all the right to take legal action against them. Second step government can take is to provide legal-aid in rural areas for free, government already set up many legal-aid but still there are many backward areas where people find it very difficult to fight for their right. Next the government should introduce a new framework of law which can clearly defines the meaning of consensual and non-consensual activity and the punishment for these rapes which can help the judiciary to take more influential steps for these cases to solve this problem in the country. By guaranteeing these steps we as a country can decrease the number of these cases and one day we can also solve this problem completely
Conclusion
It has been so many years and women’s are still struggling for their safety and rights. The current era we all are living into women always proved themselves in every field and always made the country proud, woman can be seen in every field of work, sports and etc, but we still fail to make them feel secure in their own country. Cases of rape and martial rape are increasing daily women’s are going through this sexual abuse on the daily basis. According to the statistics India lodged 86 marital rape cases and more than 100 rape cases per day.
Even after implementing laws for these offences the number of cases are still same and woman are suffering from sexual abuse from their partners. This era where the India can be counted third in terms of economics and is being recognized for their technology, geo-politics and sports still can’t make the women of their country feel secure. The increases number of harassments, assault and marital rape cases shows that India still did not take an influential steps to solve these problems. Being in 21st century and women are still facing sexual and physical abuse. At present where we talk about equality and about equal opportunity given to both men and women they are still are not able to feel secure in their homes from their own partners, not only this but men also influence women and take fake consent of marrying them to fulfill their sexual needs and denied later. Though many steps has been taken for women’s safety like women helpline numbers many organization saving lives of thousands of but still women’s safety and cannot be guaranteed, women’s are still fighting for their safety while walking on the roads, travelling in the bus or metros, they do not feel secure in the society and sometimes even at their homes where their partners do not give prominence to their consent. In many household they still don’t take it as a crime to have any sexual intercourse with their partners without their consent and it is termed and defined as rape under Section 375. Living in a 21st century having such highly educated people and still failing to understand terms like consensual and non-consensual is highly disappointing. It’s very significant for people to understand the situation and should start making women feel secure in their own surrounding and for women to be aware about these laws and crimes and taking step at an accurate moment, to fight these kind of situations women took few steps like learning self-defense for their own safety and to tackle if these kind of any situation arises, women taking this steps should be considered as a very influential step and many women saved their lives through this.
The case reinvestigated in this research paper describe about one of this issue in which a man express his love for the woman and ask her to indulge into a sexual relationship even after woman refused multiple time to form any sexual relations with him he forced himself on woman for sexual intercourse and also threaten and humiliated her with his family. In this case court explained about non-consensual activity in which Justice Gokhle wrote for the bench that “It is trite that a relationship may be consensual at the beginning but the same state may not remain so for all times to come. Whenever the partner shows their unwillingness to indulge in sexual relationship, the character as the consensual relationship cease to exist”.
Through this statement we can only hope for the best and can always believe that our justice system will find some solutions to solve this one of the most vital issue of the country. Taking a collective steps towards this issue will only help us to solve this problem speedily and to decrease the number of cases registered.
References
Intimate Relationship between Adults Does Not Justify Sexual Assault On Partner: Bombay High Court While Refusing To Quash Rape Case (July 11, 2024, 7;45 PM)
Bombay HC: Intimacy doesn’t justify sexual assault on partner. (July11, 2024, 8:30 PM)
MP HC junks rape case filed by woman after 10-year-long relationship with man (July 11, 2024, 8:55)
Nimeshbhai Bharatbhai Desai v State of Gujarat, 2 April, 2018 AIR 1975 SC 1378(July 12, 2024, 8:15)
Uday v State of Karnataka [2003 (4) SCC 46] (July 12, 2024, 9:00 PM)
Khushi Yadav
Bharati Vidyapeeth Institute of Management and Research, (BVIMR)