Sex before marriage is Rape says Delhi HC, is it right?

 I posted my comments when I found that many Hon. members were expressing the pious thought that this Act or that Act should be amended etc. etc. 

I for one am unable to comprehend as to how our courts talk of the "intention of the legislature" when the bills are not even discussed in the legislature. Sometimes they talk of the debates of Constituent Assembly in regard to scheme in the Constitution. I agree those debates are exhaustive and each Article has been discussed and debated threadbare. May be our present representatives donot have that calibre But to talk of "intention of legislature" is beyond me.

This has now become a stale topic of discussion.The judgment of Delhi High Court with regard to Rape in s*x before marriage is in total violation of Supreme court's earlier Gudie line, that consensual s*x is not rape. This refers to the Appeal (crl.) 1086 of 2007 PETITIONER: Pradeep Kumar @ Pradeep Kumar Verma RESPONDENT: State of Bihar and Anr ,Date of Judgment  17/08/2007,BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN.  The members may kindly go to the web site https://savefamily.org/index.php?option=com_content&view=article&id=161&Itemid=1 to study the full text of the judgment. There is not a straight jacket formula to determine the offence of rape except what has been defined under section 375I PC. In an offence where the woman loses her honour, the man also loses his honour.The difference is only that the man does not get pregnant. This pregnacy in most cases changes the entire scenario and terms the consensual  s*x in to rape. Such s*x may be the breach of contract or trust but certainly not Rape.

There is a famous quote that "Unless you are prepared to suffer, you cannot fight successfully, because the world is filled with cowards who want the heroes to die for them.” If we are really interested that certain clause of a particular law is illegal or encroaches upon the constitutional right of a person, it should be challeged as ultra vires before the appropriate court where each parties will be heard. How expressing personal feelings, emotions and ideas beyond the purview of law is going to help when the court has delivered the judgment ignoring  the Apex Court whose rulings are a law and binding upon all the states and its instrumentalities? Should courageous persons come forward to protect the rights of cowards? No way at least in the matter of laws. You have to fight your own battle. "When you were born, you cried and the world rejoiced. Live your life in such a way so that when you die, the world cries and your soul  rejoices". Why  one should indulge in an act which is ethically, socially ,morally and legally forbidden by law in our country? Right is right, even if everyone is against it; and wrong is wrong, even if everyone is for it.

NANDKUMAR B.SAWANT.M.COM.LL..B.(MUMBAI),ADVOCATE

MOBILE.09271971251,

e.mail.adv.nbsawant@yahoo.co.in

e.mail.nandkumarbs@sify.com

1.REGARDING THE MATTER SECTION 376 OF I.P.C.MAY KINDLY BE REFERED.KINDLY NOTE THAT F.I.R.,CHARGESHEET AND STATEMENTS OF WITNESSES AND ALSO MEDICAL EVIDENCE AND DATE OF FILING COMPLAINT AFTER THE OFFENCE THESE ARE RELEVENT FACTORS IN SUCH OFFENCES.EVERY THING SHOULD BE PROVED IN COURT.

2.KINDLY NOTE THAT THE MATTER REFERED IS OF BAIL PETITION AND NOTING IN THE SAID BAIL PETITION REJECTING THE BAIL.

3.KINDLY NOTE THAT FACTS AND MERITS OF BAIL APPLICATION AND FACTS AND MERITS TO BE DECIDED ON THE BASIS OF CHARGE SHEET FOR DECIDING THE ENTIRE CASE ARE DIFFERENT .AT THE TIME OF TRIAL OF OFFENCE ALL ALLEGATIONS ARE TO BE PROVED IN THE COURT.AND KINDLY NOTE THAT DELAY IN FILING SUCH COMPLAINT ,CONCENT OF MAJOR GIRL ,DATE OF BIRTH OF GIRL WHETHER MAJOR OR MINOR,MEDICAL EXAMINATION OF COMPLAINENT AND ACCUSED, AND STATEMENTS OF WITNESSES IN THE COURT ALL THESE FACTORS ARE VERY IMPORTANT WHILE DECIDING THE CASE.

KINDLY NOTE THAT ANY CRIMINAL CASE IS DECIDED ON THE BASIS OF ACTUAL LAW PROVISIONS ,EVIDENCE BEFORE THE COURT AND ALSO APPEALS TO SUPREME COURT AND CASE LAWS OF SUPREME COURT REGARDING THE CASE.PLEASE NOTE.

WITH BEST REGARDS TO ALL.

THANKING YOU

YOURS SINCERELY

NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI),ADVOCATE

2.

Sir, You have provided the pin point information in the context of the trial in such cases. Bail in non bailable case is the discretionary power of the Magistrate. Reasons for granting the bail or writing a reasoned order for rejecting the bail by a Magistrate are quite different from the materials which require to be proved in the trial. Magistrate grants or rejects bail on the prima facie meterials which in most of the cases do not survive the test of the trial.

very good mr adil, well done, a very good urguement. again thanks for the thread.

mr nandkumar - refuse to bail application means that the person is guilty and his right on bail application under art 21 of the constitution of india (personal liberty) is ignored, violation and infringment of the fundamental rights. it is declearing a person guilty before the judgement. 

anil sir, you are right on saying that the law makers (ie, MP and MLA) should be more catious and urgumentative while the bill put for urguement at the house. otherwise it is impossible to find out the legislative intention.

thank you sir, it is actually needed.

 You as well as I know that almost 50% of the MPs end their terms without opening their mouth. With brute majority, nothing is discussed nor allowed to be discussed. Why whip is issued? To bring them in line. In other words, no free will is allowed to be expressed.

 Bail or no bail is mostly subjective decision of the magistrate. This is the practical point of view. Law may speak otherwise.

I AM AGAINST THE WHIP. IT VIOLETS THE RIGHT OF AN ELECTED REPRESENTATIVE. and we the people of India governed us by these representatives. It is painful to me that the people is not aware of it. Large mamath parties are enjoying it. that's whe in a democratic system we get media decleared 'yubraj' - rahul gandhi; self decjleared 'yubraj' - akhilesh yadav, lot of party supremos like jaylalitha, mayawati, mulayam singh yadav, lalu yadav etc,etc. though we the indians proud to say, we are democratic, but in reality we are half democratic.

mr anil, regarding bail -

it is an admitted truth that a person will be treated as 'not guilty' - till his or her guilt proved. the purpose of police arrest and bail petition based on the theory that - though the person is not guilty till the final gudgement, but he/she may be a guilty person therefore the person may try to  fly away from the court of law. to resist it, to comple the person to bring before the court of law, there is a mid way, which is - the arrest of a person & released him/her on bail. therefore meaning of rejection of a bail application is the person is guilty.

 Say innocent within Quotes.

We have been conducting the Post Mortem examination of a judgement on this forum delivered by a court. Then we shifted to many other topics like law, enactment, politics and politicians and then to whip. Basic thing,Tupac Shakur, the famous American rapper, has said that   “since we all came from a women, got our name from a women, and our game from a women. I wonder why we take from women, why we rape our women, do we hate our women? I think its time we killed for our women, be real to our women, try to heal our women, because  if we dont, we'll have a race of babies that will hate the ladies, who make the babies. And since a man can't make one he has no right to tell a women when and where to create one”. Is it not true? We should now stop this topic.  

“since we all came from a women, got our name from a women, and our game from a women. I wonder why we take from women, why we rape our women, do we hate our women? I think its time we killed for our women, be real to our women, try to heal our women, cus if we dont we'll have a race of babies that will hate the ladies, who make the babies. And since a man can't make one he has no right to tell a women when and where to create one”