30/12/2018
Legality of s*xuality(forced) of woman!!
At 16 december 2012 a horrible incident in the capital of India ,delhi, take place in which nirbhaya was r***d and killed brutually. In a country like india whose ancient religious text like veda, upanishada and others, preach the people that respect of the woman is supreme and every woman should be treated as goddess, it is very shameful and big black spot on the india in twenty first century.
After this incident due to public pressure an ordinance was passed by the government.The Ordinance had replaced the offence of ‘r**e’ with that of “s*xual assault” in which both the perpetrator and the victim could be of either s*x. The Act passed by the Parliament reverts to the earlier concept that r**e can be perpetrated only by a man on a woman in the influence of various woman organization . It expands the definition to include pe*******on of private parts by objects etc. It specifies that the penalty for gang r**e would be at least twenty years, and could be life imprisonment (i.e., until the person dies). It also prescribes life imprisonment for repeat offenders, and life imprisonment or death penalty if the victim dies or causes her to be in a persistent vegetative state. It has enhanced penalties for offences committed by those in positions of authority or fiduciary position.
criminal law (amendment) act 2013 popularly known as anti r**e bill.The Act recognizes the broad range of s*xual crimes to which women may fall victim, and a number of ways in which gender based discrimination manifests itself. It also acknowledges that lesser crimes of bodily integrity often escalate to graver ones. It seeks to treat cases as “rarest of the rare” for which courts can award capital punishment if they decide so. The Act clarifies and extends the offense of s*xual assaults or r**e as a result of abuse of position of trust. As per the Act, the police will also be penalized for failing to register FIRs – this will make it easier for r**e victims to report their case.
In the priya patel vs state of M.P honorable high court held” though a woman could not commit r**e, but if a woman facilitated the act of r**e, she could be prosecuted for gang r**e.”
In the same case “ honorable Supreme Court, apparently, had a different view. relaying upon biological facts, construed statutory provision in favour of the woman and held that a woman cannot be charged for gang r**e. The apex court held that, after a reading of Section 375 of the IPC, r**e may be committed only by man. The explanation to Section 376 (2) merely indicates that that when one or more persons act in furtherance of their common intention to r**e a woman, each person of the group must be deemed to have committed gang r**e.
The rule is based on the principle of common intention as provided in section 34 of the IPC. Common Intention denotes acts done in postulation as per a pre arranged plan or in pursuance of prior meeting of minds. When this section is applied to section 376 (2) (g), it may require fulfilment of the common intention which in such a case may be common intention to r**e. Since such intention may not exist with a woman, as given in the definition, a woman may not be held liable for gang r**e as well.
In section 375 the word`man’ was expressly given but in the 376(2) the word` person’ is given.it means legislative is not making any prohibition about man and woman FOR conviction in the case of gang r**e
The above highlighted word” biological fact” and “since such intention may not exist with a woman,as given in the definition” clearly reflect that a woman can not intend to gain s*xual desire with another woman. .it may be also termed as a woman can not be satisfied her s*xual desire with a woman.
After the amendment in section 375 ipc in 2013 a person of common prudence can easily understand that the act for which a man is convicted for r**e can be similarly performed by a female. The matter which was not present is `intention’ of fulfilling the s*xual need of a female by making the activities given in the 375.this requirement is also fulfilled after making le***an s*x legal and by providing a legal status to the le***an marriage.
On the matter of Marriage quran states that “every person must marry”. Quran asserts that marriage is the only way to satisfy one’sdesire. Marriage (nikha) is defined to be a contract which has for its object the procreation and the legalizing of children
Legally, every young person has right to marry and to enter into a marriage contract. But unlike any commercial contract, responsibilities of the contract of marriage are not limited only within the contractual parties. Marriage is the foundation of a family as well as social relations. A couple owes a great responsibility to the family and society. In other words, right to marry is not an absolute one; it has to correspond to some other duties. For example, among the various objectives of a marriage, two prime objectives are to legalize the s*xual in*******se between two persons of opposite s*xes, and to procreate children.
Procreation of the children by the LGBT marriage is not possible without any outside help hence the aim of the LGBT marriage is only the fulfillment of s*xual desire hence it can be easily understand that by the le***an s*x a female can satisfy her desire. if a female is capable to gain the pleasure from a female then it will be hypothetical to state that female will never use the force against a female or not performing the activities given in section 375 of the IPC to satisfy her s*xual desire.
It is clearly reflect that mens rea and actus reus in the offence of r**e can be present in case of female also hence the status of female in respect of section 375 and other s*xual offences should be changed and the forced s*xuality of woman should be treated as crime. If even after the present circumstances this type of s*xual orientation is not treated as crime then it will amount to the violation of article 14 (right to equality)of Indian constitution and gradually society will considered it as surrender of judiciary before the so called woman empowering organization.
ADITYA VIKRAM SHAHI
HIGH COURT ,LUCKNOW
