When a consensual relationship goes bad : The Tribune India

Join Whatsapp Channel

When a consensual relationship goes bad

SEXUAL intimacy entails two intrinsic elements — physical union and emotional connect. Of these, the latter is the driving force that leads to the former, yet both are crucial prerequisites for a mutually consented healthy sexual relationship between a man and woman.

When a consensual relationship goes bad


Rajesh Kumar

SEXUAL intimacy entails two intrinsic elements — physical union and emotional connect. Of these, the latter is the driving force that leads to the former, yet both are crucial prerequisites for a mutually consented healthy sexual relationship between a man and woman. Rape, however, is devoid of the latter which forms the very basis of legal aspect that serves to define it under Article 375 of the IPC. 

To protect her interests, our law bestows upon woman the sole discretion and right to call it either way. She may call it sexual intimacy at one point of time, at another, a rape. Inadequacies in the law system fail to delineate the two aspects distinguishingly because the two terms have their provenance in the emotional state of mind of the woman that existed at the time of the commission of act which is hard to decipher through any external aid at a later date. 

The situation becomes more complex when rape is reported after many years. How would it be established that it was not a wilful indulgence on her part but a forced imposition? That the act was not love but a rape long after it had taken place? That she was speaking the truth, nurtured no malicious intentions against the partner and that her allegations were not driven by any ulterior motives intended at extracting undue favours out of him in the bargain? 

This aspect remains largely unaddressed yet and is thus vulnerable to exploitation by the female partner which may lead to unwarranted victimisation of the male partner concerned due to false charges of 'rape' raised against him long after the act had been committed. This is the crux of the matter that should lead us to define and put in place some mechanism that may effectively deal with such ambiguous angularities and help save the time of the courts in deciding the outcome of the cases. No truthful and aggrieved woman victim should be deprived of justice and at the same time no innocent male should become a victim of vexatious and malicious propaganda against him. 

This could be done by putting in place a legally acceptable mechanism that could effectively delineate and distinctively mark the two near-inseparable aspects of the same act in which the deciding factor is not the 'physical union' but the vitality of 'emotional state' of the female partner during the commission of the act. Let us examine the matter under three different sets of circumstances: 

While in marriage 

Defining rape while within the institution of marriage is a difficult proposition as the very idea of entering into the institution is to procreate and sexual act becomes its integral part. 

Sometimes the couple enters into sexual union neither out of any mutual willingness nor with the basic desire of getting intimate but mainly to procreate and in the said act if some amount of unwillingness creeps in on the part of wife, will she be justified in calling it a 'rape' later? And will the progeny through such union be called illegitimate? Certainly not. Doesn't it signify, even if the act had been indulged into unwillingly on her part, morally, it would be inappropriate to call it rape?If seen through the social angle, will it not amount to shying away on her part from her social and marital responsibility of procreation or attaining motherhood for her own good?

At times, the driving force behind sexual union is an intense desire to meet one's carnal desires which are again natural instincts. Again, there could be a possibility that one partner was unwilling. If that partner happened to be the female, will she be justified in calling it a 'rape'? Under normal circumstances she would rather not unless the matter has been pushed to the limit and there is perpetual discord between the two, often leading to physical violence. Under duress, she is within her right to unilaterally decide to not sexually involve with him anymore, but for that she must bring the matter to the information of the police by lodging a complaint against him. The date of filing of complaint should be legally acceptable as ground enough for final curtains drawn between the two with no subsequent sexual union permitted. Still if it takes place and is reported by her to the authorities, it should be treated as 'rape' under Section 375 , IPC. 

There is one more side to this complex issue of defining sexual union in married life. It pertains to the familial obligations. Three vital elements: sacrifice; unflinching mutual trust and dedication act as cohesive forces in keeping a marriage intact. At times, it requires either of the two partners to respect sexual union in order to preserve the sanctity of the marriage or maintain a comfortable level of emotional reciprocity. Law alone, if applied on daily basis, could make matters worse and lead to unpleasant situations. However, as a last resort, legal recourse is agreeable. Therefore, while in marriage, even if sexual union takes place under obligatory circumstances, with due exceptions to violent-ridden and inharmonious relations, why abstain from indulging in it? Why should temperamental ramifications of our inflated and superfluous egos be allowed to impede the smooth pace of togetherness called 'marriage'? It is only a balanced mix of salt and pepper laced with sweetness of love and mutual trust that keeps it going. Let us learn to respect it.

While in live-in relationship

Since the SC has approved of such relationships to be treated on a par with marriage as far as inheritance rights of the children born out of such relationships are concerned and parliament is yet to legislate in the regard, it is imperative to draw a distinctive line separating 'sexual intimacy' from 'rape' in this sphere.

When a man and woman are living together under one roof, the possibility of sexual union taking place between two can't be ruled out, more so when they are in love, which they usually do, before entering the relationship. As long as the cohabiting partners are in harmony and soundness of the relation is not impaired, sexual union between the two is called 'sexual intimacy'; the moment it turns hostile and dissonance creeps in, its nomenclature changes to 'rape'. Here again arises a need to salvage the situation and safeguard the interests of both. A couple who wishes to cohabit must file a 'Cohabitation Agreement' in the family court along with documents before entering into a 'live-in' relationship. The moment she starts feeling uncomfortable or feels like walking out of it with no inclination to have any more physical intimacy with her male partner, she must file a 'separation plea' in the court. The date of filing of plea should be treated as the final curtains drawn with no subsequent sexual union permitted. If it still takes place and is reported by the woman to the police, it should be outrightly deemed as 'rape'. 

Outside marriage and live -in relationships

Rape is best defined in this sphere. A simple 'no' from a woman or non-consensual and forced sex, as defined under Article 375, is ground enough to initiate legal proceedings against the man. But the only factor that should be adhered to is the time-bound reportage of crime. If the physical condition of the victim doesn't allow the crime to be reported to the police within the specified time all by herself, her close relative or family person or acquaintance should be allowed to do so on her behalf subject to verification of the report by the victim in the presence of investigating officer at a later stage. No FIR should be admissible after the expiry of specified time period. 

Top News

Relief for Delhi CM, High Court bins plea for his ouster

Relief for Delhi CM, High Court bins plea for his ouster

Special court extends Kejriwal’s ED custody till April 1


Cities

View All