By mutual consent

Source: The Hitavada      Date: 09 Apr 2018 12:08:21









By Aasawari Shenolikar,

AN actress, who has been staying with her paramour for a couple of years files a complaint against him alleging rape. A CEO of a company, in a relationship with a man for a few years also fumes when the relationship turns sour and registers a complaint with the police that she was molested repeatedly. A nurse, caught in a similar situation also takes recourse of the law citing ‘rape.’ Cases like these are not rare. Every day the newspapers carry at least a couple of items in which, after the bond between a couple, not legally wedded, bites the dust, the females rush to the police stations with “Help! I have been raped and molested!”

Raped and molested for years; why didn’t they complain in the first instance? What took them so long - to wake up and suddenly find that they have been physically abused and tortured?
If one wants to takes a look at what constitutes rape, then one must read Section 375 of the Indian Penal Code - the contents of which define the horrendous term ‘rape’.
Section 375 reads: Rape -A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de-scriptions:-

(First) - Against her will.

(Secondly) -Without her consent.

(Thirdly) - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) -With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

(Fifthly) - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) - With or without her consent, when she is under sixteen years of age. Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

(Exception) -Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.] STATE AMENDMENT

When we read Section 375, nowhere does it mention that ‘the act of sexual intercourse will be construed as rape if it is with mutual consent for sheer pleasure or for something that is beneficial to either party.’

In the cases mentioned above or that we read about in the newspapers, the parties enter into a relationship with their eyes open. Material things like ‘marriage’, ‘stability in the relationship’, ‘financial or any other kind of help’, are many a time carrots dangled in front of the female so that she agrees to go the whole way. Whatever be the methods used to form a liaison, the physical relationship is entered into with mutual consent. The man, in most cases, has not threatened her in any way. It is when the deal turns sour, that she suddenly starts screaming ‘rape’. Such incidents, where one aggrieved party, in most cases, the female, who has been in an intimate relationship with the opposite sex, screams ‘rape’ are not rare.

Common sense says that one should be able to gauge the other party’s attitude and know where to draw the line. And if it happens once, it can be termed a mistake: if it happens on a regular basis it is not an error. Both the parties have enjoyed each other’s company with mutual consent, sometimes for years, and hence it cannot be termed ‘rape.’ You can call it cheating for the man has cheated her by making false promises. But definitely not rape.

If one looks at the innumerable rulings of the apex court, one can easily assess that the women who feel they have been wronged cry hoarse about something in which they entered with her eyes open. They were neither threatened nor intimidated in any way.

If we look at the cases above, one thing stands out and that is that the women involved are intelligent, have a head on their shoulders, and they definitely would know about the birds and the bees. So even if the man asked for sexual favours, they could have refused and who knows he might have backed away. For months and years you stay with a person, and later, cry ‘wolf, wolf’. They knew what they were entering into and were obvious, and not oblivious, about the act they lent their consent to.

The dastardly and heinous act that happened on Dec 16, 2012 in which Nirbhaya was ravaged by four monsters, shredding to threads her esteem and dignity and left to die on the cold streets of Delhi is what rape is; when a thirty year old sexually exploits a five year old .. that is what constitutes rape; when a fifty year old molests a ten year old leaving her psychologically impaired and scarred for life that is what rape is.. not the consensual acts that are filed every day in the police stations under ‘rape’, by women claiming to be hapless and helpless.

Rape violates the human rights of the victim, in the cases mentioned above, no human right has been violated. For, the give and take of sexual favours has been with mutual consent of both the parties.

SC has many a time mentioned that a rapist degrades and defiles the soul of a helpless female - the scores of women who file complaints under the head ‘rape’ - are not helpless, but equal partners in a consensual act. If a woman is educated and above 18 years of age and yet does not exercise her right to say ‘no’ to a sexual relationship then she cannot allege rape later when the relationship turns sour, the Bombay High Court has held. Justice Mridula Bhatkar, it may be noted, a female Judge, presided over a similar matter and junked the woman’s case, citing ‘a case of mutual consent and not rape’. This has been upheld by many courts, in many cases that came to them for purview.

Clearly rape laws are being misused at will and many a time it becomes a problem for the law and judiciary to distinguish the real cases from the fake ones. If women continue to misuse the law, in the long run, it will be disadvantageous for them. Abusing the act tarnishes their reputation for resorting to wrong measures to get their way.
What they don’t understand is that such a thing is going to impact them negatively as no one would want to enter into any personal or professional relationships with such people. It affects the male counterpart adversely too- personally and professionally even if he is proven innocent.

It undermines the gravity of real rape cases, which should get the attention and resources from the court to ensure justice. The misuse of any law, however infinitesimal, undermine people’s faith in the law. It is Section 375 that is being focused on in here, but women misusing Anti-Dowry Act, Domestic Violence also abound, causing men to curse the judicial system for favouring women. Laws are laid down to protect the rights of an individual, not harass or victimise individuals - be it men or women. As it is the list of cases pending with the judiciary is long. And if the judiciary is inundated with cases that are fake or those that mistreat the regulations laid out, then the situation can only worsen.

In today’s times, when women talk of gender equality, they must not take advantage of their gender and twist the arm of the judiciary at will to favour them, even when they are in the wrong. Let not women be accused of overreacting and disrespecting the sanctity of law and assaulting the dignity of men.