Absolute Prohibition or #MaritalRape

 

                                                                        Synopsis

Absolute prohibition: When a man is married, sex outside of marriage is prohibited, he cannot have extramarital sex. It is considered as cruelty and he can be prosecuted by wife under Section 125 of CrPC and under Protection of Women from Domestic Violence Act. That means if wife denies sex to husband, wife can prosecute husband if he has sex outside marriage and can also prosecute husband for rape if he has sex with wife herself. That means it can lead to absolute prohibition for husband to have sex. Sexual organ is a natural organ of a human being like mouth and nose. No law can put absolute prohibition on  any human being to use his/her god given biological bodily organ, whether its nose, mouth or sexual organ. It will be equivalent that law is caging a bodily function of a human body

    Based on the principle of Absolute prohibition, Exception 2 of Section 375 is not unconstitutional, but removing Exception 2 will certainly be unconstitutional as it will lead to absolute prohibition of a body part of a human being. 

                                                        Absolute prohibition

 We cannot, we should not criminalize putting 100% restriction in using any of the body part, any of the biological process of body of a human being.

 

            All the relationships that a person has are by birth by blood, but one and only one relationship that is husband-wife, is the only man made relationship and that is one of the strongest relationship.

            If two persons want to stay together they can stay in any way. Then why to stay as husband-wife? The only basis of that relationship is sex and procreation. As soon as a man and women get married a presumption of sex and presumption of procreation is attached to that.

            Along with that there is another presumption that is added to it and that is any sex outside of marriage is prohibited and it is considered a social evil, a cruelty and even a ground for legal prosecution or divorce. A marriage restricts/prohibits a person to have sex outside of marriage.

            That raises major questions, if a spouse is denied consensual sex, does the denied spouse has the right in law to have extra marital sex. If a husband is caught having sex with another woman, and wife comes to law authorities. Can husband take the defence that wife has denied sex to me. Will it be taken as sufficient and valid defence to not to prosecute the husband. And case will be dismissed as right of the husband to have sex outside marriage in that circumstance. Answer is certainly NO.

            That means while wife is denying the sex to husband, she can still prosecute her husband for having sex with any other women. That means first wife marry him and takes his legal right to have sex with anyone else and then denies him sex and by that take away the fundamental right to use his god’s given biological sexual organ. It is like we are legally prohibiting a person from absolutely using his sexual organ. And if wife wants he can permanently cage the sexual organ of her husband, and prosecute him, whether he has sex with someone else or with her. Law cannot have absolute prohibition on any bodily function of any human being.

            Can any law cage a bodily function of a human body? Or can it allow any human being to cage the bodily function of another person’s human body.

 

            Sexual organ is just a nature’s basic biological body part/function

 

            Society has evolved a lot and has gone through various phases. Some societies have given sex lot of focus and some don’t consider it very odd. Even if we see old sculptures, we see nudity, we see sculptures in nude sex positions. Today we may see posters of people eating food but not nude posters of people having sex. At that time sex was just a regular thing, now we are too focused on just sex that it’s a kind of private for us. Ancient sculptures having sex and nudity are equivalent to posters eating food, and reiterate that having sex is basic natural process, a very integral part of human process. In ancient times we were more open to talk about sex but slowly society have become conservative and we don’t talk about it openly but it is as same as equivalent to human process as eating food, taking breath. For nature’s creational process there is no difference between eating food using mouth and using sexual organs to have sex. It is only our mentality / psychology and conservativeness that stop us from talking about it. Law of nature stands over and above any human made law and interfering with it is equivalent to directly playing with nature. For god and science there is no difference between eating and sex. It’s just a natural basic biological function, both are basic necessity of body. Human body craves for both in its own way. We are open in talking about craving for food, we are ashamed of talking about craving of sex. For god and science there is no difference between eating and sex.

            We are created by god or nature. We have a god’s given body which has its scientific biological metabolism / functions. When we talk about human being there are some natural traits in a human and every part of human has a meaning. We have nose in our body so that we can breathe. We have eyes in our body so that we can see. We have mouth in our body so that we can eat. We have sexual organs in our body so that we can have sex. Each part has its own function and a very important function. Without their function neither we can exist nor humanity will exist.

            Let’s say our nose stops functioning, within few minutes we will die. If all humans stop breathing in next few minutes all humanity will die. Let’s say our mouth stops functioning, within few days we will die. If all human stop eating in next few days all humanity will die. Similarly if we stop having sex, we will not procreate. If all human stop having sex we can be alive, we will not die but eventually humanity will die, we will not have any next generation. Each and every nature’s given body part has a role to play in keeping the humanity alive.

         Let’s take a hypothetical situation we find out that breathing through left nostril is bad for environment and law penalize doing that. That’s fine it’s something for betterment for humanity. Let’s say eating something is not considered good, and law penalize / criminalize that. We have law that eating beef is criminal act. Nothing is wrong in that, if something suits the society. May be law go ahead and penalize eating any non-veg. still may be difficult for some, may be an arbitrary, but still its constitutional, people can still eat vegetarian food.

    But let’s say we go further ahead, and even penalize breathing from right nostril or eating vegetarian food. What will we call that type of law, absolutely prohibiting nose or mouth to work? And what will we call such emperor who makes such laws?  Cruel or Sanki Tanashah ?

      If we have a law which absolutely prohibits a god’s given biological bodily part/process to function, that law cannot be constitutional. If any law prohibits or penalize / prosecute on each and every act done by a bodily part that cannot be constitutional.

      Once a person marries, there is presumption of consent but along with that there is presumption of restriction of having sex with anyone else. It is not allowed socially, and legally also husband gets penalized (there is no penalty for wife even though if she is in adultery.  Husband can maximum ask for divorce, and in that case also husband is only penalized, as still wife can ask for maintenance). So after marriage a husband can be prosecuted if he has sex outside marriage. Now if sex within marriage is also allowed to be criminalized that means as soon as that man performs his god given biological bodily function, he will be prosecuted. Whether with his wife or anyone else. His wife has the power to prosecute him and put absolute prohibition on a god’s given biological bodily function to perform. How can that be constitutional?

      If a woman is taking away the consent, before that she must relieve the husband from the restriction of having sex with any other women. Unless that restriction is released wife cannot have any right to absolutely prohibit the bodily function. 

      As that restriction is imposed publically /officially, it has to be withdrawn publically officially. And once that restriction is released, wife should not have any right to prosecute husband in whatsoever way if he used his god given natural biological bodily sexual function with any other women.

      When there is a law that penalizes a husband on having sex outside marriage, there cannot be any law that penalizes a husband from having sex inside marriage, especially when that prohibition is still in force.

      When we talk about any of these bodily functions they are necessary for the survival of humanity. If any of these functions stop, the humanity will finish. You stop breathing humanity will finish, you stop eating humanity will finish, you stop having sex humanity will finish. These are the basic functions of human body, can any law absolutely restrict a person to perform his bodily function. Can any law put an absolute prohibition on the basic bodily function of a human body?

      If a wife denies sex, should we take away fundamental right of a human being to use his god given body part. The power which created the human being has given work to each and every organ of the body and no society, no legislation can have the right to go against the law of nature and creation to restrict and criminalize and put absolute prohibition on the act of nature given ability to any body part.

    If marital sex is criminalized, it will overall mean that if a wife refuses to have sex with her husband, and if he has sex outside with someone else, wife can prosecute him under 125 CrPC and PWDVA and seek money from him and penalize him and can also file case for divorce on him based on cruelty and if he has sex with wife, he can be prosecuted for rape. That means a wife controls the basic nature’s given function of man and can cage his natural biological function.

     That kind of law will be violation of Article 19 and 21 of the Constitution.

     Law cannot criminalize a natural bodily function. Law can criminalize eating beef, but can law criminalize that a person cannot be allowed to eat anything at all, it will be anti-constitutional. Similarly when a person is married and his right to have sex outside of marriage has been taken away, socially and legally, as it is considered as act of cruelty, his right to have sex within marriage cannot be taken away without giving him unrestricted right to have sex outside marriage.

   It would be a strange jurisprudence wherein a man can be termed as cruel if he had sex outside marriage and can be prosecuted under Section 125 of CrPC and PWDVA Act and at the same time if he had sex within marriage he can be prosecuted for rape or any other criminal offence. That means law can restrict a MAN to use his god given and biological bodily activity and can prosecute it for one or the other offence, as soon as he uses his natures given basic function. Such kind of Act can never be Constitutional.

    By removing this exception we are caging the natural biological process/ function of a human being.

    If a wife denies sex, should we take away fundamental right of a human being to use his god given body part. No we certainly cannot do that. That means first we need to change our law that as soon as spouse denies sex a person should be allowed to have sex outside marriage without any consequences.

    This clearly takes to the point that unless there is well declared separation between spouses, any sexual act between the partners cannot be considered as any kind of crime.

    In denial we talk about bodily integrity of wife but when a spouse deny sex, why does not we talk about bodily integrity of denied spouse.

    If any denial of sex, it should be official denial, after that only any sexual act between husband wife can be considered as rape, without explicit written non consent, it cannot be called as rape.

    Spouse should explicitly notify law authorities of his / her intention of consent and that should imply that; it gives the right to other spouse to have sex outside marriage; It should also allow the other spouse to have divorce based on that.

    Instead of criminalizing marital rape, there should be alternate formal way to wave off the consent of sex, inside a marriage. And without that a marriage is considered as continuous consent of sex.

    Criminalizing marital sex can be explained with an example: If a wife is not in a mood to prepare food, it is very reasonable to go and eat food outside, it is a basic human need and a person should not be denied and restricted by law to eat food . Now let’s twist it to some extent and let’s say after marriage, it is criminal offence to eat outside food, A man should not be allowed to use his organ known as mouth outside. Now he is left only with the option that he should fulfill his basic human need only inside the house.  Now is it fair to criminalize that also. Taking away basic human right of eating and leaving him at mercy of someone else. Can we have the human at the mercy of someone else, who can decide whether he gets to eat or not ?

     If we can’t take away basic natural process of eating, how can we criminalize basic natural right of sex.

    The bodily integrity of a person are important, but Once a spouse denies sex to other partner that spouse cannot deny it without giving him back the right to have sex with any other person. When a marriage is solemnized the restriction of sex is publically / officially declared. In the same manner without publically / officially releasing the right of other spouse, the sex to other partner cannot be criminalized.