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Oped — Society

EDITORIALS

Politics over taxes
Punjab rolls back VAT amendment
Apart from the profligacy of the ruling Punjab politicians what has pushed the Punjab government to the brink of bankruptcy is vote-bank politics. The ruling Shiromani Akali Dal nurtures its rural voters by giving farmers free power and subsidised irrigation water. Though real issues related to agriculture like stagnant productivity, farmer indebtedness, water and soil health management remain unaddressed, SAD and its government play politics of appeasement with the short-term goal of securing the next election.

No subversion of justice
Settlement not an option for rape and murder
Often the over-burdened judiciary orders marriage between a rapist and the victim to "give the man a second chance and the girl, social acceptability." The same judicial system has now decided to stop any subversion of justice in the name of an "amicable settlement" when the crimes committed are of a serious nature, like rape and murder.


EARLIER STORIES

Justice without delay
July 31, 2014
Relief for Congress
July 30, 2014
Now Saharanpur
July 29, 2014
Testing time for UPSC
July 28, 2014
Joining the dots: Events in Kashmir are worrisome
July 27, 2014
Lest we forget
July 26, 2014
Judges’ appointments
July 25, 2014
Violent agitations illegal
July 24, 2014
Fighting for gurdwaras
July 23, 2014
Unreliable Sukhois
July 22, 2014


On this day...100 years ago


Lahore, Saturday, August 1, 1914

ARTICLE

Mr Modi’s baggage in office
National scale new dimension to heed
S Nihal Singh
With the Modi government settling down to its new responsibilities, it is becoming increasingly clear that it comes with its baggage. And each day brings a new gem of wisdom from the Bharatiya Janata Party’s (BJP’s) ranks and its allies to offer a concept of India and the world that is part medieval, part gauche.

MIDDLE

Common sense is not so common
V. S. Chaudhri
Common sense is not so common a commodity as it is assumed to be. It is a God given gift. The rich, the poor, the educated, the illiterate all have it in abundance but when it comes to its use, all are miserly. Dr. Lawrence Peter, an authority on management studies, has written a wonderful book ‘The Peter principle’.

OPED — SOCIETY

Of intimate relations, rage & outrage
Rape is undeniably a heinous crime. But when women accuse men with whom they have shared intimate relations of the despicable act, it's not only society but even the judiciary that looks askance with scepticism and disapproval. No wonder the courts are asking pertinent questions
Nonika Singh
Love, proposal, sex…in an ideal lovers' paradise — rather in the Indian social matrix — the three must come in a chronological order. Yet, in the real world that modern 21st century India lives in, where tradition not only meets modernity, but often collides with it too, the order could go for a toss, if not strictly follow an inverse graph.





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Politics over taxes
Punjab rolls back VAT amendment

Apart from the profligacy of the ruling Punjab politicians what has pushed the Punjab government to the brink of bankruptcy is vote-bank politics. The ruling Shiromani Akali Dal nurtures its rural voters by giving farmers free power and subsidised irrigation water. Though real issues related to agriculture like stagnant productivity, farmer indebtedness, water and soil health management remain unaddressed, SAD and its government play politics of appeasement with the short-term goal of securing the next election.

The coalition partner, BJP, on the other hand, takes care of its own constituency by opposing taxes on industry and urban voters. Local Bodies Minister Anil Joshi threatened his own government with an agitation unless an industry-unfriendly VAT amendment was withdrawn. Incidentally, he was present at the Cabinet meeting where the decision to amend the VAT to check tax evasion was taken. The BJP pressure worked and the government meekly surrendered. The Akali Dal as well as the BJP has been on the back foot ever since the electoral setback in May. The levy of property tax was seen as one of the reasons for the two parties performing below expectations. The Congress too played politics over the tax, which is necessary to beef up the revenue of the fund-starved municipalities after the abolition of octroi. Besides, Central aid for urban renewal is linked to the imposition of this tax.

People do not mind paying taxes if their money is used judiciously and transparently for good governance and providing them a better quality of life. However, in Punjab, ruling politicians recklessly misspend public money, maintaining a lavish lifestyle; education, health and infrastructure spending is woefully inadequate; and tax evasion by industry is encouraged with political patronage. The government neither cuts its own unproductive expenditure nor curbs the rampant theft of taxes. Instead, it resorts to borrowings. Because of poor governance, the state debt keeps touching a new high year after year; it will reach Rs 1.13 lakh crore by year-end. The state is caught in a self-created gridlock of slowing growth, rising debt, poor tax collection and competitive vote-bank politics.

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No subversion of justice
Settlement not an option for rape and murder

Often the over-burdened judiciary orders marriage between a rapist and the victim to "give the man a second chance and the girl, social acceptability." The same judicial system has now decided to stop any subversion of justice in the name of an "amicable settlement" when the crimes committed are of a serious nature, like rape and murder. A Bench of the Supreme Court has ruled that a compromise in such cases can no longer lead to an acquittal of the accused, for such issues cease to be personal; they influence moral turpitude of society at large.

Settlements take place mostly in cases of rape and dowry deaths in which victims remain suspect. The damaging stereotypes are reinforced for rape survivors as being promiscuous and greedy while the accused gain a high moral ground by paying money. From reporting a rape to a hostile police to unsympathetic forensic examinations, lack of counselling, shoddy investigations, weak prosecution and long-drawn court cases often force the disadvantaged victims to accept whatever little comes their way to move on with life. Reinforcing the traditional view, a higher acquittal rate in rape cases is attributed to "false cases" rather than inefficient investigations. A 2012 study of 40 rape cases tried by the district courts in Delhi that resulted in acquittals, found that more than half the acquittals were due to inadequate police investigations.

By not allowing an acquittal, even "false cases" will stand a fair chance of a proper investigation now. A compromise is often not allowed in a murder case. In the famous Byculla murder case, the issue of paying the victim's family was brought before the Bombay High Court to ignite a heated debate on the subversion of justice. Most societies do not consider a settlement for murder, for fear of replacing justice with money power. Saudi Arabia is one of the few countries where "blood money" paid by the murder accused to the victim's family is accepted under the law. Whether the new stand of the apex court makes the investigative agencies more efficient only time would tell.

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Thought for the Day

It is not fair to ask of others what you are not willing to do yourself.

— Eleanor Roosevelt

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On this day...100 years ago



Lahore, Saturday, August 1, 1914

Mr. Gokhale and knightehood

OUR Bankipore contemporary, the "Express," hears from London that His Excellency Lord Hardinge very strongly recommended, that Lord Crewe agreed and that His Majesty had graciously concurred with both in the recommendation that the Hon. Mr. G.K. Gokhale should be conferred on him the Knighthood of the Order of the Indian Empire of which in Lord Curzon's time he was made a Companion. But when Lord Crewe wrote to Mr. Gokhale signifying His Majesty's pleasure and inquiring whether it would be agreeable to him, "Mr. Gokhale wrote to say," writes the "Express," "that while he was deeply grateful to His Majesty the King-Emperor for the same, he most humbly begged to be excused the high honour on the ground that as a public man in his position he would be considerably hampered in the honest discharge of his duty by being charged with being a Government's man. Thereupon, Lord crew wrote to Mr. Gokhale that His Majesty the King-Emperor thoroughly appreciated his sentiments and had allowed the withdrawal of his name from the list.

Wealth or intellect?

ONE of the much debated questions that arose recently in connection with the enquiry about the holding of competitive examinations for Civil Service in India, was whether open competition was not better than nomination. There are certain people who do not approve of competition because they do not think that mere intellectual qualification will secure the type of men required for the Service. Among the minutes of evidence heard before the Royal Commission on British Civil Service, Sir Arthur H. Hardinge preferred intellect to wealth. Men of intellect are wanted in all spheres of service and public activity.

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Mr Modi’s baggage in office
National scale new dimension to heed
S Nihal Singh

With the Modi government settling down to its new responsibilities, it is becoming increasingly clear that it comes with its baggage. And each day brings a new gem of wisdom from the Bharatiya Janata Party’s (BJP’s) ranks and its allies to offer a concept of India and the world that is part medieval, part gauche.

Judging by our six years of experience of the Vajpayee government, we had come to expect our education and allied ministries to be packed with Rashtriya Swayamsevak Sangh (RSS) ranks or sympathisers. We have seen an obscure historian with pronounced RSS sympathies take over the Indian Council of Historical Research.

In the ministry dealing with education and allied subjects, instead of an ideologue, the Modi Government has done better: appointing a novice and school leaver to provide the RSS a sheet of blank paper to write on. Indeed, the oratory of BJP ranks and allies has been in full flow in welcoming a Hindu India of Mr Modi’s concept and in dilating upon the evils of such peril as bikinis and bars in Goa.

On the sensitive issue of rape, very much in the public eye, BJP party men's views are as conservative and retrograde as those of many other parties such as the Samajwadi Party. The world's gender revolution has still to catch up with the bulk of our male politicians who still live in a male-dominated society, with the country’s traditional and mythical tales reinforcing a chauvinist mindset.

There are obvious contradictions between Mr Modi's concept of tapping the very best in technology for the greater good and obscurantist and ludicrous beliefs that defy logic. The great danger is that the very constituency — the urban aspirational middle class that brought Mr Modi to power — will be increasingly disillusioned with a ruling party still living in an imaginary ancient world.

The fact that the scale of the BJP’s victory in the Lok Sabha election that brought the party to power, much to its own surprise, meant that many candidates were given the ticket indiscriminately without proper scrutiny and comprise a large element of the lumpen class. Some of the BJP's allies are, of course, a class by themselves. We are therefore treated to the dubious entertainment of honourable members of Parliament stuffing rotis into the unwilling mouths of the catering staff.

Another aspect of Mr Modi’s Gujarat model has made its appearance in Delhi. Indeed, the Prime Minister appears to be part sanitary inspector, part micromanager, part strict headmaster in running the national government. And such conduct must lead to serious doubt whether what would work in one state can be replicated nationally. If ministers cannot appoint their own private secretaries, it must leave question marks.

Perhaps the quality most sought after by a majority of people who voted for him is the expectation of his decisiveness. After the United Progressive Alliance II experiment with a dual key arrangement kicking problems to a bewildering array of committees, the people took Mr Modi as advertised and voted for him. Many problems are too complex to be resolved instantly, but those who voted the BJP expect those that can be promptly dealt with to be attended forthwith.

Language has proved to be another deal breaker, with an ambiguous government note on compulsory noting in files in Hindi riling non-Hindi speakers. In any event, the missionary zeal with which the new government is promoting Hindi is counter-productive. One problem, of course, is that many of the BJP leaders are not fluent in English and choose to speak a Sanskritised Hindi hard to understand because it abandons commonly spoken Hindustani espoused by Mahatma Gandhi.

The danger, of course, is that by using Hindi in their discourse, the BJP government is cutting out non-Hindi speakers from the South and the East in particular from the national dialogue. Indeed, one delegate made known his predicament after a Hindi-dominated conference because he simply could not comprehend what was being said. There was no translation offered, whether of simultaneous or subsequent variety.

The Gujarat model of governance can therefore lead Mr Modi to go off at a tangent. India is not peopled by one homogeneous people or language. Language, as preceding upheavals have shown, strikes at the heart of a people's being and deeply affects their outlook. One hopes the brand new Modi government will learn its lesson in desisting from forcing Hindi on unwilling peoples.

One conclusion one can draw from these early days of the Modi government is that scale makes an immense difference between how problems can be looked at and resolved. As Chief Minister, Mr Modi was able to subdue the Opposition and largely govern the state as a single-party government, even worsting the Governor in diluting the Lokpal’s role.

The Opposition, singly or collectively, cannot be thus subdued at the national level. And in conducting parliamentary or other business, there has to be an element of give and take. Whatever decision the Speaker of the Lok Sabha takes on giving the official status of Leader of the Opposition to the Congress, the BJP lost an opportunity in not being immediately generous, instead of hiding behind precedents.

Mr Modi demonstrated in Gujarat that he could keep fringe and extremist elements of the Sangh Parivar at bay in his state. His task is immensely more complicated at the national level because the RSS backed him to the hilt for leadership and will now demand its pound of flesh not only in appointing pliable or ideologues as ministers but also in doing its bidding on issues it considers important.

Against Mr Modi's eloquence and vitriol on the election campaign, his silence on major issues of the day has been much commented upon. The tasks of governance are, of course, quite distinct. Responsibilities of government impose restrictions on the free flow of ideas, but interactions with media restricted to short tweets or terse official press notes will prove to be a handicap in running the country.

Mr Modi is a quick learner and one hopes he will change course in some areas as he moves forward.

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Common sense is not so common
V. S. Chaudhri

Common sense is not so common a commodity as it is assumed to be. It is a God given gift. The rich, the poor, the educated, the illiterate all have it in abundance but when it comes to its use, all are miserly.

Dr. Lawrence Peter, an authority on management studies, has written a wonderful book ‘The Peter principle’. He has given some real life examples of lack of common sense in day-to-day working. At one place, he narrates an interesting experience. He says that once he applied for the job of a teacher in a university. Ha complied with all the requisite formalities such as enclosing his bio-data, copies of credentials and testimonials and a receipt for the payment of fee. He was anxiously waiting for an interview call; one day he was amazed to receive back his application with the following remarks: “Your application could not be entertained as it was sent through ordinary post. We had specifically mentioned that all applications should be sent through registered post, to ensure safe delivery. You are therefore advised to send the application and its enclosures again through a registered post, if you are still interested in the job”. How funny!

The lack of use of common sense is not confined to one country, one community or one culture. It knows no boundaries. Here is an incident from my own life. I was posted as SDM at Gohana in Sonepat in 1976.One day, we learnt that a dear friend and colleague was seriously ill and admitted to Medical College, Rohtak. We decided to look him up. When we were 3 km from our destination, a speeding truck hit our jeep and we were thrown out on the road. My wife sustained multiple fractures. I asked a three-wheeler to take us to the Medical College where the doctors operated on her. She remained in bed like a statue of plaster for more than a month.

I did not have to pay any hospital charges or doctor’s fee, being a government servant, but some costly medicines and injectables had to be purchased from outside. I prepared a bill for the reimbursement of these expenses and sent it to the Commissioner, who was the competent authority for sanction.

After about two weeks, I got a letter from the Commissioner's office raising some objections on the bill, one of them being, “Why did you take the patient to the Medical College directly? Why did you not get the case referred from the Medical Officer-in-charge of the Civil Hospital, Gohana?”

I was deeply upset. In reply, I explained that the accident took place on the outskirts of Rohtak city. Medical College, Rohtak, was just 3 km from the place of the accident while Gohana was 27 km away. The patient was in a state of shock and she needed immediate blood transfusion, as described in the discharge slip. It would have been foolish on my part to take her back to Gohana to get a reference made by the Medical Officer.

The Commissioner appreciated my point when the file was put up to him. His PA rang me and informed me that the bill had been passed. He also told me that the Saheb had also admonished his staff and advised them to use common sense in future.

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OPED — SOCIETY

Of intimate relations, rage & outrage
Rape is undeniably a heinous crime. But when women accuse men with whom they have shared intimate relations of the despicable act, it's not only society but even the judiciary that looks askance with scepticism and disapproval. No wonder the courts are asking pertinent questions
Nonika Singh

Love, proposal, sex…in an ideal lovers' paradise — rather in the Indian social matrix — the three must come in a chronological order. Yet, in the real world that modern 21st century India lives in, where tradition not only meets modernity, but often collides with it too, the order could go for a toss, if not strictly follow an inverse graph. Besides, while elements like lifelong commitment could go missing, love too, can be singularly inconspicuous.

As live-in relationships are fast becoming the new social reality of a society in a flux, broken bonds are as much an order of the day as “till-death -do-us-part” ties. Not surprising then, when love ties fracture and fissure apart, these then become the fertile ground not only for tears and acrimony, but also accusations that turn into legal battles. Lovers' spats invariably do not end in bedrooms, but crop up in courtrooms too.

Cause célčbre or lost case

The din over the Preity Zinta and Ness Wadia controversy is yet to die down. Rather, it continues to provide grist for the rumour mills, which keep churning not only relevant and irrelevant information (read trivia), but also highly opinionated viewpoints. While the verdict on who is right and who is wrong at this point might remain as sharply divided as blurred, here comes another contentious query that falls in the same hazy realm.

And this time it's not gossip mongers' tongues wagging. Rather, the ticklish observation comes from the apex court. The case in contention was about a failed relationship between a top IDFC banker and a former cabin crew member with an international airline. While the woman accused the man of sexual abuse on the promise of marriage, the man insisted that being a highly educated and net-savvy woman, she knew all along that he was married with two children. The Supreme Court bench, while hearing the case asked, can a failed consensual relationship between adults lead to filing of rape charges against the man?

Strange words coming from the highest court of the country, which only the other day pronounced: No Indian woman will lie about rape. Today, the apex court is sharing its anxiety over what it called a spurt in cases where women accuse men of rape after the relationship goes awry.

So, what has changed? Clearly, a lot. While in most parts of the country women continue to be subjected to utmost humiliation and have to suffer at the hands of misogynists, a small percentage of the fair sex has perhaps decided to bend the law to unfair advantage. No wonder, in the context of women crying foul when relations go sour, even the court contends that rape cases are being used as “a weapon for vengeance and vendetta to harass and even force a man into marriage.”

Ticklish query or misappropriation?

As the latest judicial predicament comes a few days before the Supreme Court asked the police to register dowry cases with caution, does it reflect a growing understanding of the new social reality where women may not always be the victims? Or is it a classic case of judicial sexism?

No doubt, law and society are rarely in sync. At times, judicial pronouncements could be aeons ahead of social mores, and at others, society could be practising “back-to-future” values that are an anathema to the judicial stance. Either way, it's difficult to legislate relationships and nearly impossible to do so when these fall in the intimate man-woman paradigm. Undeniably, there is a lot of ambiguity about sexual experiences between spousal /dating or live-in partners. Even in the West, where we assume there is greater equality and understanding of women's rights, date rape was believed to be a product of feminist hysteria. In the 1990s, it was felt that women were encouraged by man-hating feminists or women's groups to call non-rape experiences rape. The same contention was however challenged by many like Robyn Warshaw, author of I Never Called It Rape. She wrote, “Not knowing the right label for an experience doesn't mean it didn't happen.”

Rape hysteria or genuine grouse?

Is modern India falling prey to rape psychosis? After all, what differentiates a consensual affair from rape is consent. Now, this all-important key can be construed, constructed and deconstructed, providing leeway to either party and judicial latitude can swing any which way.

The apex court too has held that there is no straitjacket formula for determining whether consent given by the girl is voluntary or given under a misconception of facts, as it has to be decided on the basis of the circumstances and surrounding factors, which lead to the alleged consensual sex. Perhaps, politician Mulayam Singh Yadav too was making a similar contention when he said, “Ladkiyan pehle dosti karti hain. Ladke-ladki mein matbhed ho jata hai. Matbhed hone key baad usey rape ka naam dey deti hain. Ladko sey galti ho jati hai. Kya rape case mein phaansi di jayegi?” (First girls become friends with boys. When differences occur, they level rape charges. Boys commit mistakes. Will they be hanged for rape?).” Perhaps, he, whom the media outright dismissed as a misguided missile, too, was making an argument that not all rape charges are genuine. Of course, what he said was drowned amidst the frenzied clamour against him that all but bayed for his blood.

But, when the highest court of the country expresses misgivings about what may not constitute rape, perhaps there is an urgent need to read between the charges. For the sake of genuine victims, luckily courts have begun to not only ask pertinent questions, but also question the accuser, which in some cases may be playacting the victim.

The judicial pronouncements not only echo the dilemma, but often add to the confusion. At times, their bid to clear the air leads to more doubts.

One judgment rules — even if you keep your hand on the shoulder of a woman, it is for the lady to comment on the nature of the touch, whether it was friendly, brotherly or fatherly (Bombay High Court, Justice Naresh Patil, 2014). While this particular judgment deals with outrage of modesty, the same section that Preity has charged her former beau with, rape charges enter a more contentious, almost a warring, zone. As more and more women are accusing intimate partners, slapping serious charges on them such as rape, the judiciary can't help but sit up and take notice. Rape is undeniably a heinous crime. But, when women accuse men with whom they have shared intimate relations of the despicable act, it's not only society, but also the judiciary that looks askance with scepticism and disapproval.

Judicial dilemma & moral ambiguity

Certain observations have even shown the judges' bias against the concept of live-in relationships. One particular observation by Judge Virender Bhatt in a case of Delhi Fast-Track Court reads, “Girls are morally and socially bound, not to indulge in sexual intercourse before a proper marriage, and if they do so, it would be to their peril and they cannot be heard crying later that it was rape,” A Delhi High Court Bench comprising of Justice Kailash Gambhir and Justice Sunita Gupta, observed that one of the major reasons contributing to increase in the rape cases is the failure of live-in relationships. While feminists might and do see red at these utterances, the Supreme Court's ruling: “A man having sex with a girl after obtaining her consent on the promise of marriage does not necessarily constitute rape, even if he retracts on his pledge,” does not sound so farfetched and can't be perceived as anti-women.

Those who feel women have the right to determine which sexual experiences, never mind with whom, tantamount to rape, back up their thesis with research that proves husbands/boyfriends can be, rather are, violent. Indeed, marital rape or date rape can be more damaging than rape by a stranger.

Men too at receiving end

Yet, as instances of rape are acquiring horrific dimensions, as violence against women is turning grosser with each passing day, it becomes all the more important for women in particular and society in general to learn the difference between men who rape and those who don't live-up to their promises. Besides, breaking hearts isn't the exclusive preserve of men alone. Women, too, can be guilty of walking away from relationships. Can they then be hauled up for rape? In a country that has rarely seen a case of sexual harassment against women, it is a remote possibility. But yes, if rape charges continue to fly thick and fast without real provocation, as these are right now the chances of rape cases going down the same path as dowry are bright. In short, rape will remain all-pervasive but instead of women, men will be deemed as de-facto victims. Post-Nirbhaya case, as we are moving away from the victim-blaming approach, which has been the norm in rape cases, we can't afford to tip the scale in another direction.

Tricky terrain

  • One judgment rules — even if you keep your hand on the shoulder of a woman, it is for the lady to comment on the nature of the touch, whether it was friendly, brotherly or fatherly (Bombay High Court, Justice Naresh Patil, 2014).
  • Even in the West, where we assume there is greater equality and understanding of women's rights, date rape was believed to be a product of feminist hysteria
  • A Delhi HC Bench comprising of Justice Kailash Gambhir and Justice Sunita Gupta, observed that one of the major reasons contributing to increase in the rape cases is the failure of live-in relationships.
  • The apex court has held that there is no straitjacket formula for determining whether consent given by the girl is voluntary or given under a misconception of facts, as it has to be decided on the basis of the circumstances and surrounding factors, which lead to the alleged consensual sex.

Expertspeak

Section 375 IPC, which defines rape, does not cover any instance of consent, except when she is befooled by a person into wrongly believing him to be her husband, or consent obtained due to unsoundness of mind, intoxication, administration of stupefying or unwholesome substance. The law does not cover cases of consensual intercourse, which might be the result of false promise to marry or induced by misrepresentation. The Supreme Court had, way back in 2004, in Dilip Kumar vs State of Bihar, pronounced that consent under promise to marry would not amount to rape. It is easy to level allegations and it is impossible for the man accused of rape to defend himself. So, checks and measures in this regard are very important.

Sartej Singh Narula, Advocate

Relationships can be the most gratifying and most frustrating areas of our lives. Problems do surface. But, that does not mean that a failed consensual relationship among adults indicates the charges of rape against the man. Rape is difficult to prove and so is consent, which is difficult to establish. Any crime has to be proven beyond a reasonable doubt. Merely cooking up a sob story isn't enough. Though it sounds strange, male sexual harassment is not a figment of the imagination. Females can also harass men whom they had been in a relationship with in the past. Time to think, rethink and ponder upon.

Bhavna Batra, Assistant professor, Amity university, Noida

Every failed consensual sexual relationship would not fall within the ambit of rape. The intention/guilty mind is a sine qua non. If the consent is voluntary and the woman gets into the sexual act repeatedly knowing fully well the marital status of the man, the same would not fall within the ambit of rape. The reasons/factors for the physical proximity between a man and the woman can be many. In the case in which the apex court expressed its anxiety, it does not seem that the marital status of the man was not known to the woman. The consent to get into a sexual act for a long period of time shows the same to be voluntary and not having been obtained by way of misrepresentation or fraud. Thus, while the allegations can be levelled against anyone but to prove the charge during the course of trial are two different things altogether.

Pankaj Bhardwaj, Advocate Punjab & Haryana High Court

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