Higher Judiciary should quash the Delhi ADJ order on pre-marital sex

Subhas Chandra Pattanayak

Notion of judiciary is that consensual sex is no rape and so, an Additional Sessions Judge (ADJ) of Delhi has acquitted a person of charges of rape, as to him, “when a grown up, educated and office-going woman subjects herself to sexual intercourse with a friend or colleague on the letter’s promise that he would marry her, she does so at her own peril”.

Higher Judiciary should immediately intervene and quash it, because it is absolutely an anti-women judgment, supprtive of the treachery of man, over and above being vitiated with the venom of reliance on religion, inasmuch as the verdict underlines, “She must understand that she is engaging in an act which not only is immoral but also against the tenets of every religion”.

In other words, in the name of religion, the ADJ has said, that a male is above the laws despite having used the body of a female as a vehicle of his passion in an environment where the word ‘marriage’ has not got the seal of approval of religious society.

This is bad; and needs be rejected.

The case is that an orphan young nubile was proposed by a young unmarried man through chats online in 2006 and the young woman eventually had accepted the proposal. They got into a relationship that can be defined as ‘mutual marriage’. The said man used to have physical relationship with her in that environment of mutual marriage. When the mutual marriage should have been led into a socially recognized relationship, the young man abandoned her. On being abandoned by the male partner, she had interpreted her predicament as use of her body by the man on deliberate false promise of making the relationship known to the society.

Though in usual parlance, she had termed it ‘rape’, in reality it was not ‘rape’.

The ADJ has taken cognizance of the fact that there was frequent sexual intercourse between the two.

Rape_ a wrong perception

When ‘rape’ can be a sexual encounter for once between a man and a woman, frequent sexual intercourse between the both for years cannot be termed ‘rape’.

Judiciary has a wrong perception in matter of rape so far, which needs to be rectified.

As the ADJ has given us the impression, it was consensual sex between the two, and hence was not ‘rape’ of the woman by the man.

We also say that it was not ‘rape’ of the woman by the man, notwithstanding the term used by the abandoned woman in deja vu.

But, then what was it? Had the ADJ pondered over this, in interest of justice, it should not have been difficult for him to see that, sexual intercourse between the both was nothing but consummation of mutual marriage, awaiting announcement thereof to the society, which, she being an orphan, the man had promised to do on his family platform. But he did not do.

The Offense is yet to be seen

A male partner making a breech of mutual marriage is an offense; because no marriage can be unilaterally terminated. Sadly, in the case, the ADJ could not see this offense before delivering the verdict.

Personal perception cannot be judicial

I am afraid, the ADJ has not freed himself from his personal prejudices in matter of sex and marriage while hearing the case of the victim. I say so, because he says, “In my opinion, every act of sexual intercourse between two adults on the assurance or promise of marriage does not become rape, if the assurance or promise is not fulfilled later on by the boy”.

This perception of a judge may be a personal perception. But, if justice is to be done, in such peculiar cases, a judge should rise above personal perceptions and read the reality before arriving at a decision.

In this particular case, despite the word ‘rape’ used by the victim under shrouds of the wrongly used terminology, specifically in absence of a judicially determined definition of frequent sexual intercourse between two male and female adults before announcing their marriage on social platforms, the Court should have termed it as ‘consummation of a mutual marriage awaiting announcement to the society’ and should have given it the legal status the spirit of the victim’s petition really craved.

An affront to a female’s human rights

But the Court has fallen in the trodden track of woman bashing and acquitted the man that has unilaterally terminated the mutual marriage consummated through years long sexual relationship. Therefore, the said verdict is an affront to human rights of the woman and deserves to be rejected by right-thinking society and needs be nullified by the higher judiciary, which should, if and when the case comes to its attention, create a definition of frequent sex before (legal) marriage as ‘an act of consummation of mutual marriage awaiting legal status’.

Will the higher/highest judiciary of the country please rise to the occasion, as such cases are rampant in the country; and come forward to fulfill their social responsibility in this peculiar issue by giving the required legal definition to frequent and years long sexual intercourse before marriage as ‘consummation of sexual rights in a mutual marriage’, instead of terming /accepting the case as a case of mere pre-marital sex?

The issue is serious and the answer should be speaking.

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