Why misuse is an impotant consideration #MaritalRape

  

                                                                       Synopsis

 

Misuse: Every misuse of law violates the fundamental right of the innocent accused. As law authorities have failed to take any action against law misusers, than misuse is certainly a criteria as misuse also violates fundamental right.

    Once it is guaranteed by the courts that the law misusers will be prosecuted then only it can be said that the misuse is not a criteria.

  

             Misuse

So far the issue of misuse of law has been ignored. Misuse is something which is not even considered as criteria.  We know of the 498A misuse, even Hon’ble Supreme Court has termed it is as legal terrorism.  Misuse may not be criteria for decision on constitutionality but first it has to be seen what has been done to curb misuse.

 

How the misuse works:

The false accuser file complaint for a heinous non bailable offence, than with the arrest or threat of pre conviction arrest persuades victim accused to settle to her terms and along with that settlement takes away the right of the innocent accused to prosecute the false accuser.

When an innocent person is prosecuted, court uses its inherent constitutional powers to summon accused, he gets arrested , runs around for bail, He faces harassment due to constitutional powers used by police and courts. When court and police uses their powers to abrogate fundamental right of life and liberty of an innocent, it is not just the right of police and court to prosecute the law misuser but it is the bounded  duty of legal authorities to prosecute the false accuser. It cannot be expected that victim of misuse has to take steps. If legal authorities have used their powers to abrogate his rights, it is the bounded duty of legal authorities to prosecute law misuser. But no steps have been taken by courts and police against the law misusers. Indian courts have miserably failed in their bounded  duty of protecting the fundamental rights of victims of law misuse. 

On the contrary in a latest infamous case of Rohtak sisters, that has destroyed the career and lives of few boys, the Criminal law misuser girls have been let go by court by saying that poor girls have already suffered a lot. Instead of punishment they got the sympathy of court, after destroying lives of boys and violating their fundamental rights of life and liberty. Neither high court nor Apex court has taken any cognizance or objection to such attitude.

In case of Mohammed Shami, he and his brother was charged with gang rape, but when it is found that they were not even in the city on the day of alleged incident, no action has been taken against the wife by court and police for filing false rape charges.

Although it is said there are provisions to handle misuse, but it has been used very very scarcely by the police and courts.  Effectively while police and courts have violated the fundamental rights of innocent (accused) citizen, courts of India have miserably failed in their duty in prosecuting and taking any actions against the law misusers.

Below data shows number of arrests every year against the number of convicts in jail, for some specific heinous offences:

Arrest and convicts based on specific offences	Annual Arrests in Year 2018	Annual Arrests in Year 2019	Convicts in Jail as of Dec 31, 2019
Murder	57,715	54,771	72,210
Attempt to murder	96,773	96,232	7,476
Culpable homicide	6,171	6,148	3,778
Rape	41,117	36,108	13,464
Kidnapping	73,327	73,345	3,938
Dowry death	16,429	16,052	5,377
Assault on Women with Intent to Outrage her Modesty	1,01,108	98,982	837
Insult to the Modesty of Women	7,317	7,272	164
Cruelty by Husband or Relatives of Husband	1,10,789	1,42,808	1,178
Dowry prohibition act	18,083	18,720	335

 

The above data itself shows that law is doing more harm than justice to the society. For offences like “Cruelty by husband”, “Rape” or “Assault on women”, it is possible that complaint can be filed even without the occurrence of offence. In these cases arrest of accused (innocent) people are more than 100 times the convicts in jail, because Purpose of these complaints is arrest for extortion rather than conviction. These figures confirm the view point that innocent person are getting arrested just on the false allegations.

Whenever an innocent citizen is enquired and tried, it is the violation of his fundamental right of life and liberty. When legal authorities has failed to curb the misuse and failed to take any action against the law misusers than misuse of a law is certainly a criteria in a decision, when bringing a criminal law .

 When we talk about marital rape:

Section 376 of IPC:

376. Punishment for rape.—(2) Whoever,—

(f) being a relative, ……..; or

(h) commits rape on a woman knowing her to be pregnant; or

* * * * *

(j) commits rape, on a woman incapable of giving consent; or

(k) being in a position of control or dominance over a woman, commits rape on such woman; or

(l) commits rape on a woman suffering from mental or physical disability; or

(n) commits rape repeatedly on the same woman,

 

When these provisions are read with Section 114A of the Indian Evidence Act:

114A. Presumption as to absence of consent in certain prosecution for rape. ––In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.

 

Sole testimony of wife is enough that consent was not there, to convict the husband for rape. So for conviction no evidence is required, just occurrence of consensual sex between husband and wife is enough.

Who will be getting the property of husband after he goes to jail for 20 years or life. Its wife who will be getting all the property. Wife also gets divorce by default based on Hindu Marriage Act section 13(2)(ii).

That means sole false testimony of wife, that “consent was not there” is enough for wife to get the divorce, get the innocent husband arrested and convicted of rape and get all his properties.

Isn’t it basically saying that I don’t want to have sexual relationship with my husband but I want his property, or you may say I only want his property.

When misuse is so much advantageous and easy for wife and there is all probability of increase of misuse in that case misuse cannot be ignored as it also violates the fundamental right of innocent accused. 

In every misuse the most important fundamental right of life and liberty has been violated of an innocent citizen.

Once it is guaranteed that the law misusers will be prosecuted then only it can be said that the misuse is not a criteria.