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bhima balla (none)     26 May 2012

Http://timesofindia.indiatimes.com/india/man-ditches-live-in

https://timesofindia.indiatimes.com/india/Man-ditches-live-in-partner-of-8-years-faces-rape-charge-SC-dismisses-bail-plea/articleshow/13487862.cms

This is the most absurd thing! I don't think Indians are ready for a western custom. This is an outrage. Either they stick with Indian custom or change to western setup. Indian laws are so pathetic that it is neither there nor here. The couple is in live in situation because the man doesn't want to marry. That is common elsewhere in the world. If Indian system can't digest this and understand this, then why did SC say live ins were OK? What part of livein is not clear here? Live in does not mean marriage and should not be treated as such! It is unclear how this constitutes rape-if the decision not to grant bail is the reason as stated! The boy has done nothing that is culpable. I mean does it take 8 years for a girl to figure out if he is going to marry or not. Or is it her hope that someday he is going to marry her?

Indian system is a mess!



 30 Replies

cm jain sir (ccc)     26 May 2012

Its totally blind legal system of our great country.

I think judgements are passed by tossing the coins!!! 

Tajobsindia (Senior Partner )     26 May 2012

A. Let us leave for a moment Law on Bail.


B. Let us leave aside for a moment caste, customs, traditions and customary marriages in India
too.


C.
Let us also leave aside that this girl’s family were blind for 8 years not to search where their little angel was living for 8 years in a metro nor one can say that this boy’s family were also blind for full 8 years being from metro city not to know what their apple of eye was doing from last 8 years. It is simply un-believable fault of both girls and boy’s family first to conduct a full show with box-office sales all for themselves all these 8 years is my customary view.


1. What this news item portrays is the ‘character of an Indian girl” which our Parliamentarian kept to highest pedestal while discussing Hindu Marriage (Amendment) Bill, 2010. If in doubt re-read my earlier post what our Parliamentarians said about Indian women
re.post
https://www.lawyersclubindia.com/forum/Your-mp-discussed-marriage-laws-amendment-bill-in-parliament-58330.asp
I suppose no newspaper is dropped at our parliamentarian’s doorstep all their life time not to read where Indian society has advanced today and then in 2 years time we will vote them again with a message not to read newspaper again for next five years and so on so forth!

2. Why “character” comment from me which many of you while bare reading may find quite outrageous; the only two reason I can state in public is that first for 8 years a Indian girl should not have subjected herself to heinous crime of “being raped” to be stirred to lodge a complaint of rape when her alleged rapist of 8 years wants to start a family of his own. She was being "raped with her wide open eyes" all for 8 years and cannot be called now “that she did not enjoyed it for a hope....what hope?” just to drive home a western lifestyle message now labeled as Made in Indya! And second where were for 8 long years girl’s elders not to protect their little angel from a metro rapist? I mean girls donot subject themself to be rapped that hope of marriage is there after rape..........do they?


Crying now
sour grapes is simply not done thing in developing (empowered) Indian social fabric in which certain social crime of passion’s equal partner you were too for full 8 years.

 

 

Now mark my words; this idol of a girl of empowered generation readers of India’s largest selling dailies will withdraw her complaint and adjust with this guy as his ‘concubine’ as old passions commited in metros die hard in a huffy – she was just teaching him a chintu sa lesson is all they will laugh at some Bar some Farm house some shopping mall in days to come and who cares for his wedded wife – she is actual victim in my opinion does anyone atleast care to agree on this!

Vishwa (translator)     26 May 2012

Indian women never have consensual s*x, they only get married or raped.

bhima balla (none)     26 May 2012

Indian society is being forced to change due to geopolitical influence. It is having a difficult time because of ingrained traditions, customs and beliefs. Since the Indian system-legislature, executive and judiciary are unable to comprehend and respond adequately to the current situation that cannot incorporate the society's belief system with geopolitics-such nonsense is occuring.The loss is for the country and the soceity. It is the failure of vision and leadership overall. Nations die with this kind of thing, historically.  And history repeats itself!

As Tajobsji has pointed-citizens are to be appalled at the level of discussions carried on in the law making bodies.

Rajeev Kumar (Lawyer/Advocate)     26 May 2012

Our judiciary have been totally paralysed and not only partialy blind but also fully blind. Our apex court is acting as a both edge sword where we don't get releif rather trapped in. Most of the our apex court judgements are self contradictory.

Saurabh..V (Law Consultant)     26 May 2012

@Vishwa

 

Your statement was really outrageous and discriminatory in nature for both genders.

 

 

 

How can you equate marriage with rape? Such cases which come to court under S.376IPC r/w S.90IPC are ALL cases of consensual s*x.

 

 

 

Even this case as lodged by the girl is of failed attempt to lure the boy for marriage. Only that after 8yrs of failed trying the girl finally woke up to the truth that all her pleasure is gone and she would be blamed. Hence she decided that lets fasten the liability to the boy.

 

 

 

Such instances ask a question to the law makers, judiciary & our society:

 

"Can consensual s*x be equated with brutal rape?"

 

 

 

The definition of rape assumes only a female could be raped. But this is discriminatory to men. If a girl promises a boy of marriage and then retracts after several years, this would at max. amount to cheating. Whereas, when a man would retract, it would amount to most heinous crime in law. Ridiculous!

 

 

 

Read on to understand where we get swayed on law-point:

 

 

 

Does False promise of marriage and s*xual intercourse when combined together culminates into rape or not? This is very controversial topic where many Courts have answered in affirmative while others have dismissed it. Even Supreme Court has taken a conservative view and left it open for the courts to deal it on case to case basis.

 

The basic understanding of this proposition lies with S.90IPC:

 

Section 90. Consent known to be given under fear or misconception

 

A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or

 

Consent of insane person:- if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or

 

Consent of child:- unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

 

Microscopic scrutiny of this section would reveal that, when a misconception of a fact is deliberately created by a person in other person's mind with deception and with intention to deceive the other person this section would be called for operation. Additionally, if we study the whole section, it also mentions about consent of insane person and consent of child. What was the necessity of explicitly mentioning these two categories explicitly? Certainly, while drafting the law, the legislature would have been of the view, that those people who could be deceived easily, like a child, an insane, an illiterate or a person who is backward with respect to his/her socio-economic status could be protected. Those who are well educated and living in metropolitan cities were not the intended category of this section. Thought I agree that this code applies to every citizen without any exception however the application of every section is subject to certain provisions and correct interpretation.

 

A promise is not a fact within the meaning of the code (IPC). S.90 IPC talks about misconception of existing fact. For example S.493IPC. It defines if a boy deceives a girl by making her believe that she is already legally married to him and then cohabits with her is punishable. Such cases are more the ones where we can draw inference of malicious intention of the boy. But can a promise of a future event about which neither the boy nor the girl could be sure about, amount to creation of misconception?

 

In Uday’s case (2003), the Hon’ble Supreme Court of India while iterating this proposition added that there could not be any strait-jacket formula and every case is to be treated on its peculiar facts. The court while agreeing with the Jayanti Rani Panda’s case, observed that a full-grown adult girl who understands the morality of the act (physical intercourse) and who also understands the consequences of the act, is matured enough to constitute consent. After indulging into physical relation for so long till she gets pregnant and even her parents do not know about it, is promiscuity on the part of the girl. Such acts of the girl could not be pardoned and the criminal liability could not be fastened on the boy.

 

Where the girl also knows that physical relation outside the institution of marriage is immoral, then it cannot be said that there was any misconception. The girl knew what she was doing. Allowing complaints of full-grown girls lead to cases like Preeti Jain who accused Madhur Bhandarkar of raping her on pretext of giving her lead role in his films. Didn’t she know that to be a lead actress she should have good face and skills? What made her believe that sleeping with a man could make her a heroine? Similarly, a girl cannot force a boy to marry her just because she had s*xual intercourse but she should convince the boy of her skills which are required to be a good wife. A girl cannot be allowed to legally terrorize a boy to marry her.

 

We have to appreciate that it is false promise of marriage which could be punished under S.376IPC but not the breach of promise. Breach could occur due to many reasons which are out of control of the boy and which even the girl knew since the beginning of the relationship like parents resistance to marriage etc.

 

 

 

//peace

 

/Saurabh..V

Damayanti (Unemployed)     26 May 2012

This also puts his marriage in trouble ...

 

 

Were his in-laws and bride told about live relationship i.e. past life?

 

 

Bail is difficult for any  accused under 375/376 ipc. 

 

 

That guy did not make it clear to her that .... He was averse to marry her specifically but he does not mind live-in with her and this attitude of his is not changable ever !! .... AND ON TOP OF IT, in future he isn't averse to marriage as such ( and if he thinks it fit, he may marry to any other woman just dumping this woman!!!)


 

That girl would have been mislead by him.

 

 

That chap has cheated two women and their parents etc.

 

 

And what is the character of his parents and relatives???

Saurabh..V (Law Consultant)     26 May 2012

@Damyanti

 

Which world are you from?

 

Do you expect that whosoever one plans to marry would not have has a past relation? The generation has gone so fast that before any guy or girl marries, they have had 3-4 relations. Live-in was equal decision of the complainant and the accused.

 

Also you stated in bold letters as if it is your own story! I assume it is not so! Hence stating that the boy wouldn't have made it clear is imaginary and false!

 

Moreover, the boy married another girl to whom again you don't know if he told about his past or not! How can you simply assume everything against the accused and in favor of the complainant? Criminal Jurisprudence goes by the fundamental principle "Innocent until proven guilty".

 

That's the irony of this system. Everyone readily agrees that man must have done something wrong and woman always states gospel-truth! Wake-up! It's 21st centruy where EVERY woman claims that they are not behind any man. They are equal. Then who are me and you to deny that?

 

This case has got merit. The girl's story is 8yr of torture or rape but boy's story is that why she didn't alarmed anyone during these 8yrs? What moral character does the girl follows that she continues for 8yr of live-in? If she was has such modern outlook, why is she rolled-back to 19th century girl?

 

Read my post abive which explains the complete login behind these laws related to such cases. Only because some judges still holds their chair with biased mind and orthodox thinking, they deny bail of innocent men.

 

//peace

/Saurabh..V

Tajobsindia (Senior Partner )     26 May 2012

As many as 29,951 cases of 'Maitri Karar’ (Friendship Contract) were found officially registered at the District Collectorate office in Ahmedabad, Gujarat which is official figure as per findings during my oldest visit there in 1993.


The Maitri Karar was a pact between a married Hindu man and his 'other woman' to circumvent provisions of the Hindu Marriage Act that prohibits another marriage while the wife is still alive.


It was not legally enforceable, but the Maitri Karar was meant to give a sense of security to the married man's 'other woman’.


The point I am drilling now is that young people should consult Advocates before doing anything (before marriage) in their life. After all Advocates donot charge bomb to provide in-chamber consultations! If these two youths of the nation would have consulted me 8 years back I would have suggested them “Maitrey Karar” and would have sent my munshi to Delhi & NCR's jurisdiction SDM’s office to get one registered. But then this is one media reported case of economics of arrangements I leave this matter to just that………

 

Ranee....... (NA)     26 May 2012

The boy got married on February 12 and the former live-in partner went to Mandawali police station on March 1 insisting on registration of her complaint accusing him of repeatedly raping her on the promise of marriage.

the complaint contains above lines.....

Vishwa (translator)     26 May 2012

@Saurabh

I must protest against your misrepresenting my words. I only meant that Indian women, because of social pressure can never admit to consensual s*x. If they enjoy with their husbands, it is fine. If they enjoy in any other context, outside of marriage, that is, they are forced to deny it and cry out *rape*

In Garhwal where I live, if teenagers are caught in compromising situation, a rape charge is invariably brought against the boy while the girl goes more or less scotfree.Whereas in fact she might have provoked the situation by encouraging the boy, in fact the matter is consensual with no force involved.

What I am saying is that a woman's body is her own and she may do what she pleases with it, give it to whomsoever she likes. But a male dominated society like ours is always is always trying to curb - without success, I must say - this basic freedom.

For example, if a woman wants to terminate an unwanted pregnancy, she is likely to be forced to obtain her husband's consent.

Vishwa (translator)     26 May 2012

If a boy enjoyed repeatedly with a girl after promising marriage, can this be rape? No, not at all! The boy can be prosecuted for breach of promise or cheating at the most. Personally, I would say mothers should teach their daughters not to believe in such promises and that the girl richly deserves what she gets.

Ranee....... (NA)     26 May 2012

Originally posted by :Vishwa
"
If a boy enjoyed repeatedly with a girl after promising marriage, can this be rape? No, not at all! The boy can be prosecuted for breach of promise or cheating at the most. Personally, I would say mothers should teach their daughters not to believe in such promises and that the girl richly deserves what she gets...i agree..
"

i also agree that if boys are taught about what such breach of trust may lead to !

Saurabh..V (Law Consultant)     26 May 2012

I would like to add here. Can you teach Business Tycoons to not to make advertisements which lure innocent buyers to spend lots of money in their products? Can you ever guess that even if the boy made any such luring & false statement to the girl?

 

Such cases should be banned permanently unless the girl cannot bring a reliable proof on day one. Barely on statements if we keep allowing the lives of innocent boys to be ruined, then they would only have no other option left but than to have "contract s*x". Before every man sleeps with a woman he would go to court and take a stamp paper signed before 5 witnesses that whatsoever is being done, is done without coercion and fraud and is with full consent of the girl! Is this what we are intending our society to lead to???

 

Full-on rubbish!

 

A full-grown girl understands that s*x (even if consensual) is immoral outside the institution of matrimony. Then how can you say it was rape?

 

Can someone here define rape? Please don't give S.375 or S.376 but a definition which would really exclude possibility of false cases!

 

//peace

/Saurabh..V


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