MARITAL: The SC is under increasing pressure to clarify its position on marital rape. Universally, in the countries of the West, consent is an essential condition for any sexual relationship even between a married couple. (Picture is for representation purpose only)

By Adv Vinayak D Porob

The Supreme Court is seriously considering marital rape ban in the context of a large number of child marriages in the country. Genital rape is not equivalent to a sexual relationship with consent between minor married couples….

TO curb sexual violence against women, especially on minor girls, the Supreme Court recently passed a judgment which will have far reaching consequences. This was passed while the SC was dismissing the bail application filed by an accused for rape of a minor on the pretext of marriage. While noting that this crime was punishable u/s 376 of the IPC (Indian Penal Code) and Section 6 of the POCSO (Protection of Children from Sexual Offences Act,) it was noted that the grounds that there was a “love affair” between the victim and the accused, and the accused’s subsequent refusal to marry, would be extraneous for bail — considering the age of the victim who is a minor.
Nowadays it has been seen that at a very young age courtesy movies, Internet, and especially due to the daily soaps telecasted on various channels in India, wherein multiple affairs and multiple physical relations are put on show, children try to emulate the actors even in their own life and and get involved in so called love affairs. These are more often than not only an attraction or an infatuation, and obsession towards a particular person of the opposite sex…which these physically mature children of immature age and mind consider as love!
Such affairs rage on cross all limits and there are life-changing consequences which are severe, leading on to destructive behavior further on in careers and relationships. Parents play a very decisive role in the lives of these young children and especially in cases where there is matrimonial disharmony between the parents as more often than not children in such families get neglected, as a consequence of which the children fall prey to immature obsessions deceptively considered as love – making for excruciating situations.

RAPE IN MARRIAGE
LATELY, the Bombay High Court, in a case of rape on the pretext of marriage, quashed the FIR. Here the victim married the accused. While quashing the FIR, the Court made an observation that no offence u/s 376 of IPC is made out since the victim and the accused were in a relationship from 2017 to 2019 and as they continued to have physical relationship. The consent in the view of the court was obtained without there being misconception of fact, force, pressure or coercion.
The court also accordingly considered the relationship to be consensual and accepted the settlement between the victim and the accused and quashed the FIR. In my opinion the court should not have accepted the settlement and quashed the FIR as trial is the only mode to find out whether consent for physical relationship was obtained by misconception of fact, force, pressure or coercion or not?
By accepting the settlement and consequently quashing the said FIR, the SC has set a bad example in my opinion, wherein now many so called victims will threaten, blackmail and cajole the accused to come to their terms under the guise of settlement. I personally feel that in most of the cases if the victim is not below 16 years of age, consent for sexual intercourse is obtained without any force or misconception of fact.
Most of the girls being educated now very well know the consequences of their actions and realize that due to circumstantial changes and incompatibility sometimes it becomes impossible for a couple in love to marry. Due to modernization and advent of western culture in Indian society, love relationships and live-in relationships have become common, and in cases of live-in relationships of several years if rape is alleged, then the out of court settlement system would be a medium of extortion.
To compel the man to meet the woman’s terms which the court should have considered while quashing the FIR, irrespective of whether the accused had married the victim or not. What if the accused had not married the victim? Would the court consider the relationship to be consensual and quashed the FIR?
The accused committing rape should be severely punished, as it is a heinous offence not only affecting the body but also the mind of the victim. Accused of gang rape, if proven guilty, should be shown no sympathy as such accused destroy the life and existence of the victims. However, cases of rape arising out of love relationships cannot be judged on the same parameters to that of a gang rape or a rape committed on a helpless victim.
In cases of love affairs there is a relationship for a sustained period between individuals who are in most cases of major age, educated and capable of judging the consequences of their actions, and as such blaming the man alone and punishing him would be so unreasonable and unjust to the man. Therefore, I personally feel no straitjacket formula can be adopted in deciding cases of rape on the pretext of marriage.
I personally feel the adjudication of offence of rape on the pretext of marriage desperately needs rethinking and reconsideration. The legislature needs to bring about necessary amendments to IPC and other Penal Statutes, in order to ascertain or fix parameters in law, which will assist in adjudicating cases of rape on the pretext of marriage — or else, the present anomaly in adjudicating such cases will continue.

(This is the personal opinion of the writer who is an advocate practicing Criminal Law in Mapusa- Goa.)