Consensual sex or rape?
November 14th, 2009
My vegetable vendor sells me vegetables with a promise that they are all fresh but sometimes his vegetables do turn out to be bad. Should I sue him for breaching his promise? Going by what Preeti Jain has done may be I will. I know that selling vegetables and having sex are two different things but a breach of promise is still a breach, be it for vegetables or for sex though under different sections of IPC. For the uninitiated, here are some facts. Preeti Jain has alleged that Madhur Bhandarkar had sex with her sixteen times between 1999 and 2004 and she consented to it only because he promised to give her work in his movies but did not. And if he has gone back on his promise the consent stands negated and therefore she has charged him of rape. Technically this is what consent in a sexual relationship means-
“Consensual sex is when both partners are freely and willingly agreeing, or consenting, to whatever sexual activity is occurring. Consent is an active process and a responsibility shared by both partners in any relationship. Consent cannot be given when an individual is intoxicated. Sex without consent is sexual assault/rape.”
Please note that technically again “freely and willingly” is debatable. Whether the promise of work impinged upon this freedom/willingness is a question which needs to be answered. Another question which she needs to answer is whether she liked what she did with him or not? In other words whether she enjoyed the whole activity or not? I know I’m being very crass here but these are relevant questions. And I’m pretty sure she would not have done it sixteen times with him if she did not like it. Fact is that all this technical stuff is rather misleading. It can confuse the hell out of not just us but judges, lawyers and linguistic experts as well. What is in fact not confusing is the fact that she was just ‘using’ her body to get work in return. If Bhandarkar went back on his promise how does it amount to rape? In no way am I suggesting that what Bhandarkar did was correct. Though he denies having had sex with her at all I still believe that Preeti is correct. Surely they had sex but the onus of having sex with him or not was entirely on Preeti. A woman has to know what she’s doing with her body. She was a grown up girl and could’ve easily said no. May be she didn’t see through him the first time or the second time or even the third time but she only realized the truth after doing it sixteen times even as he made four Bollywood movies between 1999 and 2004 namely Trishakti(1999), Chandni Bar(2001), Satta(2003) and Aan: Men at work(2004)? Well, if you ask me it is plain stupidity on her part. Bhandarkar may not be out of the woods just yet as far as the courts are concerned but the charge of rape will surely not stand the scrutiny. Although he may be charged for breach of promise under section 415, which is hardly any offence, technically, with a maximum punishment being only a year and/or some fine.
What this goes to show is the impropriety which women show while handling the issue of sex. A woman has to know her man before she gets into bed with him. Preeti is not the first woman who has charged a man for rape in this manner. There have been so many such after the men went back on their promises of marriage. Even our courts have found it rather difficult to handle these issues. This is amplified by the fact that judgments given by Supreme Court on such cases have been contradictory to each other. In one such case in Oct 2006 it gave a verdict that - Sex under false promise of marriage was indeed rape. It also added that consent under fear of injury or misconception is not valid. You can read this report on The Hindu here.
In Aug 2007 in another similar case it gave a verdict that- A man having sex with a girl after obtaining her consent on the promise of a marriage does not necessarily constitute rape even if he retracts on his pledge. You can read this report on Indian Express here. Agreed, the two verdicts were given by two different benches but they were both Supreme Court benches nonetheless. So you never know which way the courts will decide next. In any case these are such long drawn and messy affairs that it is better not to get into them. In my view the onus is on the woman and woman only. If she believes in her man she can go ahead and have sex with him. There was yet another case recently when the woman helped the man in drugging her entire family and then had sex with him in her own house. Thereafter when the man went back on his promise of marriage she started crying rape. The High Court in this case is off course not convinced. You can check out this report on Hindustan Times here. Imagine the stupidity of this woman to have done what she did and then she compounded her stupidity by telling the entire world how stupid she was.
Like I said, the chastity of a woman is in her own hands. In such cases there are so many intangibles that it is nearly impossible to prove whether the guy ever intended to marry the woman in the first place or not. And yes, there are indeed cases when there has been a genuine fall out between a couple and the woman has gone on to file a case of rape against the man. Poor men I tell you! I feel really bad for some of them at least. As for the rest of the male category there is no doubt that most of them would do anything to get a girl into his/her bed and that includes a promise of marriage. But remember that Promises Are Only Meant To Be Broken. And in most cases they are. Remember the case of Fiza who was ditched by Chand Mohammad alias Chander Mohan? So just be careful. That’s the bottom line.
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November 15th, 2009 at 5:40 pm
I may sound odd, but I am sure that women who go to Bollywood to chase their dreams are no ignorant village babes who can be conned and taken advantage of.
Everyone knows that there is a casting couch syndrome and everyone also knows that a lot of aspiring young wannabes wind up with only promises, sex and little else. Therefore, if a woman sleeps with a man - that too for five years - on a promise, then she is desperate or dumb or both. Also, the fact that she is willing to sell herself for a role implies that she may well have slept with others too; obviously she can't go to court saying that she was bed-hopping on promises alone.
A promise of marriage is not marriage; an engagement is not marriage. Both are broken sometimes; they are not legal contracts. This is something everyone knows.
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Comments on : I may sound odd, but I am sure....
Comment By : Sush
November 15, 2009
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November 15th, 2009 at 11:49 pm
Hello,
My thinking exactly matches the ratio of thinking of both of you. Your attitude is actually towards the gravity of the alleged offence which is strongly required while dealing with cases related to women. I believe that all the women must not be praised as a goddess and all the men must not be treated like devils. Before we reach a conclusion in any case, we must have reasons associated to that. Just because someone promised for marriage does not legally bind that person to marry the other. Then how can the same promise are taken into courts of law? In my view, when the circumstances clearly shows that the girl was always a consenting party and she always said YES (when she could have said NO), such a case must be discarded on the face of it. Such cases not only bring trauma to the accused but also bring negative effect to the society. The real ‘Gold Diggers’ make the most of such situations and entrap the innocent person for their personal benefit. But those who actually deserve to be heard are never given a chance and those who actually deserve to be punished are also let free. The famous story gives support to my contention in which the boy used to falsely cry WOLF! WOLF! & when actually the WOLF came, nobody was able to help.
A differentiating line must be there between heinous and immoral offence. Just because we have combined the section IPC376 with IPC90, it does not make it heinous. For the entire duration the girl never felt she is being raped. Now only because of a failed marriage the same act cannot be treated as heinous. It’s immoral on the part of the man and the woman, both. Physical relation outside matrimony according to our culture is immoral. Hence, when a full grown girl (who can understand the morality of the act and the attending consequences) consent for such activity (which she herself considers as immoral), it should not amount to rape. On the other hand, in cases when the man is already married, there is sure shot case made out against him. Also in cases, if the girl can bring evidences (might be circumstantial) that the man was indulging into similar activities with other girls as well (during his relation with the complainant), then it’ll be clear that the man never intended to marry her.
Just because we are dealing with a complainant who is a girl does not makes a crime heinous. The law makers must understand that such a law only encourages girl to indulge into such activities. With such laws they are assured that no matter what the girl’s act is, the man will be pushed behind the gallows. The responsibility of our judiciary is not only to punish the guilty but to make sure that a positive message is displayed before the society. Discouraging such activities only, shall result in pulling brakes to such cases & the better method is not to ask the fire to not to burn our body, but to ask the full grown human to be more cautious.
/pranks
New Delhi.
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Comments on : Hello, My thinking exactly ma....
Comment By : Sush
November 16, 2009
And by the way thats a nice name you use- prankS.
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November 16th, 2009 at 4:11 pm
There is no doubt about it. She must be having a ball with him. Its only after he probably moved on that she decided to take him to courts. The entire game is so dirty that it is nauseating. But the fact remains that she's no kid. She must've known what she's getting into. I would advise her to lump it and move on.
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November 17th, 2009 at 11:57 am
Hi Sush and everyone!
I want to add someone in this topic... Indo-pak community is losing their culture and tradition day after day. Indians are walking on the western path whereas Pakistani are following the indians whatsoever they have earned from the yanki's culture. Last time, when i visited New Delhi, i observed that that was India of my forefathers... Modernity does not teach you that you should forget your sanskars, mores but to upgrade your values be more civilized... The poet of East.. Allama Iqbal says:
Apni he matte pay chalnay ka saleeka seekhoo
sangay mer mer pay chalo gay say pisal jao gay.
If you give up your culture and tradition, it means you have given everything. If we adopt or act upon the philosophy of free sex, who will care for the new born babies: born without having self identity. Just believe me or not.... our forefathers were very honest... on right path. Revive the same spirit in our young generation.
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November 17th, 2009 at 12:44 pm
And if things are not going to change in our society a woman has to learn how to take care of her body. Tell me, are things as bad in Pakistan as well?
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November 17th, 2009 at 1:37 pm
Hi Sush! Well received point! Let me clear it, media .. media.. media. Whenever i discuss this thing with my fellows, they responded me in same way. My dear, media is a tool somebody is playing with it. It is not a living phenomenon we have made it alive. What we are doing here.. just transformation of ideas and thoughts.. it is called media. May be we can acclaim it is being processed in micro level.
Through observing and reading, i come on the conclusion that if you have three things, Allah gives you rule over all nation whatever your religion is.
1) Knowledge with wisdom
2) Justice
3) Love and respect for others
Our forefathers were having these all but we are losing day after day. The main thing is to purify ur mind and ur ideas, rest will be done by itself.
If i compare Pakistan with India, still there is difference between two countries. We have all which ur forefathers were having before partition. In big cities like Karachi and Lahore, the people are not like Indian but near to them. Anyhow, they cant think of kissing ... in parks independently. i stayed 8 days in New Delhi and Faridabad and came in conclusion that if ur culture is going to astray, we will be affected badly. It is also a new for of terrorism, which is more worse than of suicidal bomb attacks.
Interestingly, during my workshop, i asked the question to my married indian colleague.. how many kids she had. She responded back in flash, she did not think of babies yet. I got surprised and furthermore, my old Indian fellow told me that she was not only one .. there are so many cases..
New thought i m leaving for u .. rest is assured.
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November 17th, 2009 at 2:10 pm
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January 12th, 2010 at 2:43 pm
Hello Sush,
To me this allegation is nothing but farcical. I am bemused by one simple point - having sex 16 times over a period of five years 'and having a tag of the count'! Wow - that is remarkable memory. I mean it takes some clout to come out in public and say one had sex 'exactly' 16 times over a period of five years. Which also mathematically means that she had a 3.75 times sexual binge with Madhur over one year. Hilarious!!! What a fools paradise! Preeti Jain has got away with the required publicity she needed. And poor Madhur is toiling to keep his personal & public life from entangling.
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January 12th, 2010 at 3:17 pm
And do forgive me for calling you KRP. It's KPP for sure.
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January 12th, 2010 at 3:40 pm
Thanks for the correction Sush. I have been going, when time permits, through all your earlier blogs, hence this late response.
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May 4th, 2010 at 5:29 pm
After a long time I have read such an Articulate post. I guess this topic is quite complex as Judges havent themselves made a consensus on it..recently i heard Our Present CJI commenting that if Rapist agrees to marry the Girl he should be spared!! Which I strongly oppose, this judge is the same who gave some fantastic remarks on the cases in lights of Preeti\'s alleged CONSENSUAL \"CONTRACT\" SEX ... I guess we need some kind of law to deal with it ..especially one like SEX, Child Molestation( no law for boy being Molested), Rape , Minimum age for even consensual sex
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