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Recent judicial activism over sexual matters
In recent times Indian judiciary is taking a lot of interest in delivering verdicts on sexual matters. I consider three cases one by one whose verdicts were given on 04 March, 08 March and 09 March, 2014. I discuss each in chronological order and even though they may appear somewhat disconnected they do have a relationship.

In the first case, a trial court in Delhi said that a victim of marital sexual abuse should be treated as a rape survivor, while denying bail to the man accused in the case of sodomizing his pregnant wife.

The fact is that the victim must get justice and the argument that there is no law forbidding sexual abuse within a marital relationship is no genuine excuse. But still sexual abuse by a married man or woman towards spouse is not necessarily rape. At the same time the fact is that, the abuse, if very serious, should be considered legally un-admissible and courts should punish the guilty after considering the merits of cases separately and comprehensively.

But simply because a court or courts together cannot coin a word for sexual abuses committed in a legally tenable relationship; this is true at least in public domain, does not mean that such crime be termed as 'rape'. Neologism is indeed important as the charges would decide the quantum of sentences. Also, subjectivity should be given its due place and there should be no universal national laws.

The equally important fact is that people from both genders and there are only two genders legally in India, should be made more aware about the crimes they can commit in a sexual relationship and their possible punishments. If an accused does not know his and her possible crime then how can he and she be made responsible or held accountable? By knowing laws naturally? I do not think Indians understand laws that much. 

Therefore, education is mandatory. But sure abuses and rapes within an accepted relationship should be considered unacceptable by both the society and the judiciary. I think that females should live a dignified life in India and this should be particularly true of married and educated urban females.

In second case Nagpur branch of the Bombay High Court has ruled that rubbing the male organ against female genitals constitutes an attempt to rape. True, but only after certain reservations. The verdict holds ground only in certain circumstances and definitely not always. In the changing times males and females in India discover newer methods to enjoy their sexual lives and rubbing their genitals against each other is one of the ways.

Sure, forcible attempt or doing so against the wishes of girl may constitute an attempt to rape but again the judiciary should consider such abuses in the changed socio-economic circumstances. The fundamental point is that freedom and pleasure should never be punished in India. Also, no consensual contract can ever be termed as forced because of afterthought, peer pressure or because of the ideologies of the supposed victim and accused.

Anyone believing that I am for freer and more open India on sexual matters, then, he and she are definitely wrong. I am for more decent India and I am not promoting or advocating free sex rather campaigning for proper judicial treatment of such cases. But people anyway will do whatever they want to.

Only thing is that even judiciary cannot act as our guardian and should not attempt taking sides. Punishment is no way to curb sexual misconducts, mishappenings and irregularities. Equally judicial activism is not a surest possible way to regulate sex in a thriving, modernizing and updating Indian society. Therefore, judgment needs to be qualified and clarified. No consensual sex or part of consensual sex constitutes rape or attempt to rape.

In the particular case the ‘victim’ girl took excuse from accused on the ground of urination. Obviously she would not have liked the act to proceed but still she herself should have allowed male to rub his organ against her genitals. This cannot be considered an attempt to rape as such neither if they had continued the sex it would have constituted a rape in normal sense. 

However, the male was awarded five years rigorous punishment, for a ‘crime’; if that be a proper word to define their act, I think that both were complicit in. Such model case becomes problematic when either or both of the persons involved have worn lingerie. What would justice department then say?

That cannot be the case of attempted rape and both participants would enjoy act almost as much as in the above model case. All need to understand that sex is usually mutually satisfying and girls also enjoy it. They are rarely victims. But at the same time any girl undoing herself, she herself closing the door of the room where they are having it, can always deny further sex with her partner even after foreplay. This is indeed true and there cannot be any doubt about it.

In the third verdict delivered on 09 March, 2014, the Bombay High Court observed that a woman is not always duty bound to respond to sexual advances of her husband or to attend to her husband’s sexual overtures. These cannot be termed as cruelty and cannot be bases of divorce. The Bombay High Court was hearing a petition involving a married couple in which the woman, his cousin, did not want to have sex with her husband during their honeymoon and the husband wanted divorce on that ground. The court rejected the plaintiff’s argument.

Well, one thing that is rarely discussed in public domain is the relative and absolute libidos of partners. As a group, males have higher libido and they usually have a longer sex life. Sure, usually the wife and rarely the husband do not always have to respond to sexual overtures and call for intercourse from his and her spouses but what if one of them wants and the other denies?

I am sure that when the rejection of sex cannot be the basis of divorce then some limited force in having sex, usually applied by husband due to impulses, can not be termed as rape. Unsatisfied lusty people in the form of satyriasis males and nymphomaniac females cannot be blamed for their aggressive sexual behaviors. Those should be treated as their normal hormonal impulses.

One must be fair to all, most of the times, in as many circumstances as possible. I need to reassert that sex is mostly mutually satisfying and this is more or less true about educated urban middle class and higher classes people. In this 'equal game' there are not too many victims within marital relationships. All need to take others' opinions in to account. It is not merely the male's job to be looking for sex as females can have an equivalent urge as per their body-requirements.

Better thing would be that the Indian state not trying to regulate sex and judiciary keeping some safe distance from this much-talked about matter. I think the system should leave it to couples after making sure that unnecessary violence and aggression on any one do not take place within a formal and socially acceptable relationship though appropriate measures could be extended to any kind of relationship.

Once again let me make it clear that I stand for more cultured India and better India and I am no promoter of nudity or free sex. But these things would always continue and in fact increase with passage of time in India. This is a reality check. Too many regulations would not reduce sexual crimes but rather they would distort sex-relations.

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 In case you have a opposing view, please click here to share the same in the comments section.
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