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Can consensual sex ever be termed as rape?
Pre-marital sex is "immoral" and against the "tenets of every religion", a Delhi court additional session judge, Virender Bhat, has said this while holding that every act of sexual intercourse between two adults on the promise of marriage; once broken, does not become rape.

“When a grown up, educated and office-going woman subjects herself to sexual intercourse with a friend or a colleague on the latter’s promise that he would marry her, she does so at her own peril. She must be taken to understand the consequences of her act and must know that there is no guarantee that the boy would fulfill his promise,” justice Bhat further added.

Fine, simply because pre-marital sex is immoral as per the judge, it is against the tenets of every religion and since both genders are involved in sexual acts, and therefore, the system can take away any legal protection granted by the Indian Parliament and the apex court to supposed victims in social sense, mostly females here in India, is not true. Indian laws may have been influenced by Manusmrti but they are not fully based on it. However, my argument is completely different.  

A consensual sexual act between two adults of opposite genders; can it ever be called a rape even if in Indian context the male breaks the supposed promise of marriage? The answer is definitely no and I know that the Delhi court has held the same view after certain reservations.

But what if one or more of the conditions put up by justice Bhat about female’s adult status, education and she being a working one are not met? Would the system punish him legally in such situations if the male break his promise of marriage? From that verdict it appears, yes, but not from my point of view.

I tell you except for the jurisdiction under Indian Penal Code if ‘general’ laws be applied properly and consistently then any consensual sexual act between two humans of opposite genders can never be termed as a case of rape. I know that my argument is rather socially disturbing and discomforting and as per many, destabilizing as well but then this is the truth from my point of view and I must express it.

The interference of the court can come only in those cases where a boy or male makes a premeditated and predetermined fake promise of marriage just to do sex with a girl or with a female, as the case may be. Otherwise, the issue is totally societal.

I am not saying that Indian females should not be having legal protection against the exploitation by males but then that should come only in those cases. In India many atrocities are committed against females and there should be protection for them against such acts. But this is an absurd issue about putting one of the consenting partners in sex as rapists more so, in view of the fact that most of the time both genders enjoy sex, at least in their young age.

Moreover, most of the people are fickle and careless in those tender moments. They cannot be judged as political leaders taking public oath over sovereign matters and that of protecting constitution and later violating those. Even if a male does consensual sex on the promise of marrying a female and does not keep his promise afterwards then the girl or female can put charges of fraud, cheating and seduction on him but not that of rape.

The law is simple but law in India is not applied consistently and correctly on all people for all times. Suppose a relatively better off Indian boy or male does a consensual sex with a non-adult girl or with an adult female or does sex with a girl or a woman of similar higher class on the promise of marrying and that particular girl or female complaints to the police after the boy or male violates his oath, then what would happen to him?

The answer is simple he would be let off rather easily, most of the time. This is true even in those cases where the male makes a concrete promise of marriage or even when the female becomes pregnant. There is no legal solution to such social crisis. After all, it is a matter about consensual sex.

I know that as per Indian laws even consensual sex with a non-adult girl could be termed as rape but then the same judicial system permits marriage of as young girl as fifteen years old in many cases. According to media reports, almost two-thirds of Indian brides are married below the age of eighteen years. Therefore, defining an adult female is a bit difficult issue in India.

So what happens if there is a class-miscegenation either way? Then the lower class male can be punished, if the higher class female complains and she has the support of family and the relevant part of the society. But punishment in the reverse class scenario is mostly not going to come.

The rich of any gender cannot be punished for sex, most of the time, in India. Mind you, Indian elites have impending reasons to remain as updated as possible and such reasons include their economic selfishness too. By all accounts, edge and relative consciousness cannot be undone in India.

Frankly speaking, I personally do not support pre-marital and extra-marital sex at all but I am frank enough to say that the law enforcement agencies; police and courts together, can never regulate sex to any meaningful measure in Hindu-dominated India in these rather testing times.

The point is simple: breaking of promise of any kind cannot turn any consensual sex between two people of opposite genders, irrespective of their age, caste, class, religion, literacy and region, a rape. Only thing is, as I repeat, that on rich people the law will be applied mostly correctly and consistently and on those who are not so, the verdict can go any way.

I think that the Indian courts should not intervene too much in personal lives of their public. The modesty and righteousness come by one’s own efforts and commitment and not by any legislative work, legal action or by paper transaction. It does not mean that country like India should advocate free sex or gay rights either.

But at the same time while a majority of Indians, except for the dominating elites, have good reasons to remain traditionalists, a morality on sexual matters cannot be imposed by judicial authorities in as free a society as India is and in this ever-interacting world.

The same is true about gay rights as executive and judicial restrictions on gay sex cannot negate the growing trends. But then people have to make some choices one time or another and not all restrictions have equal meaning.

Editorial NOTE: This article is categorized under Opinion Section. The views expressed in this article are solely those of the author and do not necessarily represent the views of merinews.com. In case you have a opposing view, please click here to share the same in the comments section.
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