bhanwaradityajadon's Profile and details
have done LLB from Campus law center, university of Delhi , LLM from Indian Law institute, supreme court , New Delhi,CS(F) from ICSI, new Delhi, PGD in IPR from Indian Law institute, New Delhi, Practicing in Supreme Court, Delhi High Court, M.P.High Court, bench at Gwalior, CAT, Consumer Commissions and other Tribunals including M.P. Revenue Board at Gwalior.
Succumbing To Feminism
This Article is a contemplation of what could have been thought by an Accused / Husband who is charged with Rape from his own wife.
Penal provisions are personified as gender egalitarian in the hind sight but these provisions are inculcation of gender extremism when evidenced to reality. A reality whereby the feminist ideology makes a deliberate endeavor to build its hegemony premising itself on the legal parlance approved by the Parliament. As I was busy in trying to draw an analogy from the text of Indian Penal code, 1860, Someone clamoured! Char Sau Dus (410);This was a number allotted to me. During all these years I have yearned for my name to be called respectfully, let alone leave respect, even my name is forgotten. The only script where my name is to be found is in the register held at the disposal of the Jail Superintendent whom I met a year before. Today, I find myself accustomed to the life which I neither deserved nor wondered in my wildest dreams! Thanks to my wife who woke-up one morning only to lodge a complaint against me saying that she has been raped last night although she had been sleeping with me for the past 5 years post marriage.
Welcome to the age of Feminism! As many think tanks define Feminism; a manifestation of emancipation of women folk by which the rights and the character of women viz-a viz, inter-alia, political, social and economic, are restored or protected in order to inculcate a level playing field for the women within the society. A mere perusal of the literary meaning of the Feminism which is so dichotomous to the feminism when evidenced to reality that the former does not fit in the purview of the real feminist trait perpetrating in the nouminal hemispheres of the Indian psyche.
I could have thought more on the instant subject pertaining to the real hypothesis of Feminism but a Jail official apprised me of the date fixed before the Judicial Magistrate. An hour later, as soon as I entered the court premises, people have already nicknamed me a ‘Rapist’ and henceforth even when the investigation was at its embryonic stage, the judgment was out on the streets that I have raped an innocent lady who, not many people knew, was my wife and with this legal maneuver, year after year elapsed.
It took 7 years thereon for the judiciary to set the stage for adducing of evidence and to my utter shock and dismay, I was informed by my attorney that it was not my wife who has to prove the charges of rape but instead, the onus was on me to prove that I have not committed rape on my wife. I was further informed that the statements of my wife need not be corroborated as held by the Hon’ble Supreme Court of India in the case being Om Prakash Vs State of Uttar Pradesh, meaning thereby that her statements shall have the force of the law and in order to acquit myself I need to negative the assertions made by my wife.
The aforesaid legal procedure became a watershed in my understanding of law what I perceived of being sound but unfortunately was miles away from my inherent perception. As I was flipping over the pages of the amended Indian Penal Code, 1860, I was shocked to see the kind of powers that has been bestowed upon the women folk by virtue of the penal provisions. I began wondering some of them and still could not find answers, as to my satisfaction, to numerous questions:
· Gender Equality: - a myth or a reality
This is one question which have been capacitated to have an effect of nightmares even to the ‘who’s who’ of the Judicial-cum- Legal fraternity. I could recollect of someone in the court asserting that our Constitution is the source of all the laws in India. In fact, that erudite stranger went on to say that such was the position of our Constitution that it has become sacrosanct imbibing the character of transcendentalism.
If this so, then the Indian Penal Code, to my perception, is not just a habitual offender but also the most consistent delinquent and in order to prove the same, a mere comparative perusal would suffice the justification for my hypothesis.
· Rule of Evidence:
I was apprised, some time back as to the procedure regarding the Evidence takes place. My queries as to the Corroboration of the statements of my wife was also put to rest when my attorney induced me to read section 114 A of The Indian Evidence Act,1872 and inculcated my cognitive faculties as to what purpose does it serve in light of the fact that the statement of woman is itself bears the character of law and in order to challenge the presumptive dictum enshrined in the said section, the Man has to prove to the contrary i.e. there was a consent on the part of the prosecutrix.
I was wondering that what methodology one should take on to prove the aforesaid. In fact, proving the same is more difficult in light of the fact that the prosecutrix is the wife of the accused as it is rather impossible to determine the dichotomy between her reticence and absence of consent. However, the law is such that the aforesaid difficulty does not in any absolve the husband from the culpability if the wife asserts that her husband is to be tried for the offence of rape.
· How far is it correct to convict a person for outraging/Insulting the modesty of his own wife?
This question is based on morality and in order to answer the same, the legality has to become mutually exclusive Viz-a Viz Morality. While answering the same, I was wondering as to how far is it equitable to level charges under section 354 and its allied sections on the person who happens to be the husband of the prosecutrix.
I was wondering that at the time of making love, how one would know whether a lady’s unwillingness is based on her reticence or her absence of consent? If the parameter of determining her willingness is based only on her consent then I would have been accused of all the aforesaid offences at the first night itself when I had been honeymooning with my wife. Probably, the differentiating line between the two has become so obscured that it is almost impossible to make out as to what commands consent and what could be her reticence.
However, the husband and wife do not sail in the same boat when it comes to the advantages being held at the disposal of a woman. In fact, even an afterthought whereby the wife conspires of putting her husband behind bars is extremely easy as all that she needs to do is to make a police complaint. The list of advantages is exhaustive as against inclusive in nature.
· How far is it correct to convict a person for Voyeurism viz-a viz his own wife?
When my attorney apprised me as to the charges of voyeurism leveled against me, I was so disgruntled that I went on to ask to the Judicial Magistrate that isn’t it preposterous to even accuse a husband of voyeurism when the prosecutrix is his own wife. Although, I heard a whimper of my attorney, who must have shown his dislike to my questioning before the Judicial Magistrate but I was determined to satisfy myself and my anxiety was put to rest only when I was answered by the Judicial Magistrate that he was acting under the mandate of the IPC, probably he was also not sure as to the element of morality under the ambit of the mandate of section 354-C of Indian Penal Code, 1860.
· Is there any injury caused to her?
During the numerous discussions, I was inculcated with a notion that the quantum of punishment in practical sense is premised on the injury caused to the prosecutrix. Generally, the foremost injury caused to the prosecutrix is the social stigma which is attached to such offences.
I wonder what stigma could arise to a wife who had been sleeping with her husband since last many tears and woke up one morning only to be realized that she had been raped as her husband is accused of Section 354 and its allied sections.
I am recollected of a dialogue in a Hollywood movie asserting that with great power come great responsibility. The power has been bestowed by the Penal provisions but the same has been bereft of corresponding responsibility. In fact, such kind of laws may move the society to an extreme feminism where the biggest power would be the feminine power.
The Accused in its aforesaid memoirs has made deliberate attempt to urge the people to understand the gravity of his deprivation to freedom by virtue of the penal provisions which can be arm-twisted as per the whims and fancy of the prosecutrix who is a wife of the accused. There are many victims like him who had been compelled to lead a life of an under-trial and certainly this was not he would have yearned for. The proverb of happily ever after has been lost and its tracing is mutually exclusive to certain penal provisions.