No Apologies for such a crime.
Law is meaningless, when all men are good, and useless, when all men are bad. Fortunately or Unfortunately, Man is a mixture of the two which has necessitated the birth of law. Does it mean law is flawless because it happens to monitor, limit and control human behavior to an established set of patterns? Or is it that its authority could not be questioned as it happens to be supreme?
“Any fool can make a rule, and any fool will mind it,” said Henry David Thoreau. After all Law is another creation of one man to pull strings of many men and thus can never be ideal. Flawlessness being a mirage in any human creation, even law has succumbed to cracks and crevices.
The Indian Penal Code too, sadly is haunted by gremlins and the provision relating to rape is one among them.
The Indian Penal Code is almost a century old. It was drafted by Thomas Babington Macaulay which came into operation on 1862. However, amendments did take place but not commendable ones.
Rape being one of the most heinous crimes in the world has been poorly dealt in the Indian Penal Law. The alarming increase in sexual offenses throughout the nation, it has become a matter of grave concern and hence requires a rapid amendments.
The definition of Rape according to section 375 is quite elaborate. The statute is as follows;-
375. 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 descriptions:-
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 offense of rape.
Exception– Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
A saga of a helpless lady
What’s especially chilling is that the judge, Virender Bhat, was hearing a case in which a woman alleged she had been drugged, then forced to marry, and then raped — in other words, she hadn’t consented to the marriage or the sex. Bhat said there was no evidence that the accuser had been drugged, but he also said that if the woman’s husband (identified only as Vikash) had forced himself on her, that wouldn’t qualify as rape under Indian law.
Here’s the official word:
The prosecutrix (the wife) and the accused (Vikash) being legally wedded husband and wife, and the prosecutrix being major, the sexual intercourse between the two, even if forcible, is not rape and no culpability can be fastened upon the accused.