Marital Rape: Do we really need a fresh law?

By Sumit Nagpal

Nonsense! This was the response I got from a Supreme Court lawyer when I was tweeting against the demand for having a law to deal with what is called marital rape in India. I was a bit amused to see the other responses. Someone said that I am a chauvinist who supports marital rape and someone even responded by saying I am ignorant to the fact that it does exist. But if I am against the idea of a separate law to deal with marital rape, it doesn't automatically means that I condone it or I am supporting what is termed as marital rape, neither I am a person who is ignorant to the fact that marital rapes is a reality around the world. I am of the firm opinion that it should not be called marital rape but it should be termed as cruelty and NOT rape.

Marriage under Hindu law is a sacred where conjugal relations are the very essence of the relationship. If a spouse leaves the other the spouse has a right to file a case for restitution of the conjugal rights. And what are normal conjugal rights? It means having normal mental and physical relationship, procreation and living a happy married life. A happy married life means mental and physical bonding between both the spouses and each spouse can have a reasonable expectation from the other that he or she will get both physical and mental pleasure. Now if a wife is saying no to have sex with the husband, she is exercising her right to have sex on her own will on the one hand, she is also denying to her husband what may be considered as a normal expectation from his side. So in case the husband forces his way on her, does it mean he should be sent to jail for getting what he is otherwise legally entitled to get? Certainly no is the answer. (When I say "legally entitled to get", it means a man's entitlement to conjugal rights and not entitlement to rape. Have been forced to add this line because of a willful misinterpretation by someone who wanted to play mischief.)

Nobody on this earth can deny that desire to have sex a natural desire and men have every right to fulfill it in a happy married life. Imagine a lady denies sex to the husband or rarely allows him to have sex. What should a man do? He can’t go out to have sex with any other woman because to have sex outside the marriage is the first ground for divorce under Hindu Law. So you deny him sex at home, law doesn’t permit sex out of marriage and a man has no recourse available to satisfy his natural urge. 

Indian law is heavily tilted in favour of women. Even I have seen gross misuse of section 498A of the Indian Penal Code, I have still never written for removal of this law. I know how this law comes to the rescues of many women who genuinely suffer on the hands of her husband and in laws. The question here is whether 498A can only deal with cases of dowry related issues? The answer is No. Over the years, Supreme Court has expanded the definition of cruelty. Now it includes cases where the husband doesn’t have sex with wife for a long time. This extended definition makes me wonder that when not having sex with the wife can be covered under the definition of cruelty, why it can’t cover cases where the husband is trying to have forcible sex. Problem with applying 498A in what is called a marital rape case is that there is a general perception that 498A applies only to dowry related issues. But I will not be surprised if tomorrow some judge of the Supreme Court or the High Court gives an interpretation that 498A includes marital rape by husbands.

In any rape case, consent is the criteria for deciding the guilt and the protection to husbands under Section 375 of the IPC is silent on the issue of consent. But can’t it be reasonably presumed that marriage is itself means that a man and a woman are consenting to conjugal relationship? I don’t, even for a second, mean that men have a license to force themselves on wives the moment they get married but it is true that a man can have a reasonable expectation from his wife when it comes to sex. And when there is consent for conjugal relationship, it cannot be termed as rape but at the most one can say that it is an act of cruelty which should be dealt with under Section 498A of the IPC.

When I say Indian Law is heavily tilted in favour of women, I say it because I have seen numerous cases of abuse of law. The recent statistics show that Indian men are committing suicide because of the harassment meted out to them because of false dowry and rape cases. Do men get compensation if they are acquitted of false rape/dowry cases? No. Then how can we think that we will be doing justice if we create one more law to deal with marital rape? As explained above, Section 498A of the IPC can deal with these cases on the criminal side and Domestic Violence Act can deal with the situation on the civil side. A women can have shared household under Domestic Violence Act, can go for legal separation if she wishes, get maintenance if she is unable to maintain herself financially. Existing laws can deal with all the situations which may arise due to the cruelty. 

I have no hesitation in saying that the demand for having a separate law is creation of feminist minds who want to see husbands in jail for having a reasonable expectation from his wife. As there is a famous saying “marriage is the price men pay for sex, sex is the price women pay for marriage” one should accept the hard reality and should not attempt to create a law which will be misused 100 times more than the legendary Section 498A of IPC. If a wife is being subjected to forcible sex, let her file a case under 498A or seek protection under Domestic violence law or file for divorce. Merely creating more misery for men will not help the institution of marriage, rather it will be a great injustice to women as the gross misuse of the law will trivialize the entire issue and genuine victims will rarely get relief. 

Full text: 2G trial court order on plea of Swamy against Home Minister P.Chidambaram

Please click on the following link
Full text: 2G trial court order on plea of Swamy against Home Minister P.Chidambaram

Online content, law and challenges before big websites

By : Sumit Nagpal When the internet was in its infancy, no one would have thought about the enormity this medium of communication would gain once it gains momentum.  The governments did not take it much seriously and after the burst of dot com bubble, people thought that Internet shall remain confined to emails only. Reason behind such a thought was the failure of most of the websites which thought they will become millionaires once they start a dot com project. I still remember the days, when I used internet for chatting on Yahoo. And I must confess, just like any other youngster, my aim also was to make girlfriend through Yahoo messenger. 

But then saw how internet gradually started invading in our daily lives. Email was a thing of the past, everyone was busy in chatting, then we saw blogs, then came Orkut and gradually Google and Facebook changed our lives forever. Most of us know that to start a website is one of the easiest tasks in this world. You just need Rs.99 to register a domain and any developer shall make a basic website for ten thousand rupees.

The government never understood the potency and reach of this medium. In traditional style, if a person needed to start a publication, he was required to get his magazine or paper registered in Registrar of News Papers in India. The Government would do some background check, will also put some conditions and only then a person would be allowed to become a publisher. But internet changed it all. Everyone could become a publisher just by clicking few buttons. No one was required to take any permission for registering a domain, no one was required to have any journalistic qualification but everyone was a publishers.

And here the problem started. People who were not qualified became publishers and most of them did not even understand the legal implications. Some people started writing things they could not prove and internet became a tool to write whatever one felt about another. I am a witness to a tweet in which a popular TV Journalist was called a sl#t. As a law student, I was shocked to see such things. Not that I was shocked to see what people wrote about her but I was shocked to see that practically no remedy was available to her in law.

Problem with online content

The plus point or the minus point of the online content is that it remains and exists forever. If there is something derogatory/objectionable is published in a newspaper or a TV channel, the time shall heal the wounds and the damage to a person can be controlled. But in case of online content, it shall keep coming before your eyes. First when it is published and then when the search engines would again show that content in search results. So online content has much more shelf value as compared to Newspapers or TV

Delhi High Court threat to websites like Yahoo, Google and Facebook

I know Delhi High Court judges are not so immature that they will censor content the way China has done. But what I understand from the observation is that people, especially websites, need to think and device ways to deal with the menace of online objectionable content. The judges know that it is practically impossible to filter millions of web pages every day. But should be simply turn a blind eye to this menace or should we, to start with, atleast start looking at this issue in an objective way? Not that I am a great supporter of online censorship. But I am of the considered opinion that there must be some kind of regulation if not censorship.

Way forward

As I wrote, I am not a great supporter of censoring; I support some kind of regulation. Be it by way of an ombudsman or self regulation by the websites. If the websites are serious about not letting their platforms for violation of law of the country, they must think about it. If they fail to do it, not websites but their lawyers shall end up making money because of the potential litigation this issue will generate. I am of the opinion that two-way strategy needs to be used to handle this issue

• In your user agreements, put a clause that the content submitted by the user shall not be violative of any law of the land. 
• In the WebPages too, there should be a link that if some content is violating some law, the same material should be reported to legal department of the website.
• The ombudsman, on receipt of a complaint, must track down the user by tracking the IP address and after doing so, a notice should be issued to the person publishing such content. 
• In case, the person is not in India, the government/police must report it to the website concerned and the said website should be asked to remove the content.
• The court must punish the publishers of derogatory/offensive content who use WebPages as a tool to abuse others

Conclusion

I understand that many of you would disagree with me on this issue. At the same time, as a law student I also know that we have freedom of expression but it’s not an absolute right. When we write something one the web, we must also think that the person against whom we are writing also has certain rights like right to fair trial and right to privacy. I remember what Uncle Ben told Peter Parker in the movie Spider Man “With great power, comes great responsibility.” So when use the power of internet to communicate things, we must use it with utmost responsibility. And this applies to each one of us clicking on the Publish button after writing something. 

Important matters coming up for hearing in the Supreme Court on 16.01.2012

Dear All,

As I informed all of you that our website Spread Law is undergoing some changes, I am putting this information on my blog.

Thanks,

Sumit Nagpal


Court1/29 (PIL) Safai Karamachari Andolan.
Court 3/52 ( PIL) Sarla Parekh v/s Union of India
Court 3/71 196/2001 PUCL v/s Union of India (Night shelter issue)
Court 3/73 ( PIL) Wasim Ahmad Saeed v/s  Union of India 
Court 5/5 Sukhram v/s CBI.(Telecom Scam)
Court 5/6 ( PIL) Bharat Jhunjhunwala v/s Central Electricity Authority
Court 6/31 (SLP fresh) Surat Singh v/s Union of India
Court 6/63. ( PIL fresh) Manjit singh v/s  Union of India 
Court 7/50 ( PIL fresh) Manohar Lal sharma v/s CBI
Court 9/15 ( PIL Fresh) L.k. Venkat v/s  Union of India
Court 10/26 (SLP fresh) M. K. Azhagiri v/s A.Lazar.
Court 10/204 CBI v/s Afzal Ansari.
Court 10/67. (pil) Anil Gupta v/s Union of India
Court 13/301. (2 pm) Ramlila Maidan issue.

Spread Law is now a website. Please visit www.spreadlaw.in

Here we come

It gives me immense pleasure to announce the launch of www.spreadlaw.in . The journey of Spread Law started on 16.09.2011 when I started a blog to spread legal awareness in India. The blog was an instant hit as people wanted to know more and more about legal news and legal issues. Someone wanted to know the happenings in the court and someone was looking for legal guidance.

I started to write blogs on law, just to make it simpler for a layman to understand what is going on in the courts and what are the legal implications of a particular step of the government? Gradually I started getting more queries. Some of my online friends were looking for legal guidance. I wrote an article on Law on FIR. I also wrote an article on Law on bail. I realized that the more I wrote, the more my friends wanted to know. And within two months of the launch, Spread Law got twenty thousand hits worldwide.

My friends were quite impressed with the performance of the blog and many of them suggested that I should start a full fledged website on legal awareness. When I thought about the idea seriously, I realized that there is not a single website in India which bridges the gap between law and a layman. Most of the websites promised legal aid but not a single one has tried to put an effort to make people understand about legal issues.
And finally I decided to convert my blog into a website. When you have a first look on the site, you may notice certain deficiencies but friends just have some patience as the site has just started, there are many issues which we are working on. Many features have to be added, design has to be improved and many things have to be done. Still if you feel there is something which needs immediate attention, feel free to write to me.

What do I intend to do?

One of the main objectives of this website is to spread legal awareness in India. Me and my friends will try our best to make it simple for each one of you to understand the complex legal issues. We shall also write articles on various subjects so if you ever get into a legal issue, you get a full understanding of the subject before you visit a lawyer.

How can you contribute?

Right now I look forward to support from each one of you. I am not looking for any funds at this point of time and I am funding www.spreadlaw.in on my own. The only support I look from you is to spread a word about this website. I would also request you to make this website your homepage so we get more and more hits in the days to come. I promise to each one of you that if this website becomes a hit, I would be able to help thousands of people who are suffering just because they are ignorant about their legal rights. I would try to help as many people as I can.
With these words, I seek the blessings of my seniors and good wishes of my friends and juniors to make www.spreadlaw.in a great success.
Sumit Nagpal,
Founder, www.spreadlaw.in

Initiate contempt proceedings against CBI : Gujarat to SC

In a hearing relating to the fake encounter of Sohrabuddin, the Gujarat government today told the Supreme Court that CBI is giving communal twist to the case.

The state went on to say that it was wrong on the part of CBI to cast aspersions on lower Judiciary in Gujarat. The CBI officers had alleged that prosecuters and magistrate in the trial court trying Sohrabuddin encounter case were relatives of Amit Shah, who is one of the accused in the case.

The bench of Justice Aftab Alam and Justice Ranjana Desai slammed the CBI for making allegations against the judiciary in Gujarat just for ensuring the transfer of trial of Shorabuddin fake encounter case outside Gujarat

The bench observed, "...to suggest that judiciary even at the lower level is trying to favour politicians is complete non- sense. To systematise the judiciary and say it is toeing the political line, we disapprove it. We will protect the judiciary, though one or two individual may commit mistakea..."

The Gujarat government objected to CBI affidavit asking the apex court to initiate contempt proceedings against the CBI

Delhi HC notice to SC, AG and SG on a petition asking that all the advocates be allowed to practice before the apex court

The Delhi High Court has issued notice to Supreme Court, Attorney General, Solicitor General, Supreme Court bar association and Advocate on Record association on a petition filed by Balraj Singh Malik asking for abolishing Supreme Court rules which provided that a petition can only be filed through an Advocate on Record.

A bench of Acting Chief Justice A K Sikri and Justice R S Endlaw issued the notice after the petition prayed that in the light of the notification of Section 30 of the Advocates Act on 15th June 2011. The notification provides that each and every advocate enrolled in any state bar council shall be entitled to practice before any court throughout India including the apex court.

The petition also prayed before the court to declare Rule 2,4 and 6B of order IV Supreme Court rules. These rules provide that only an Advocate on Record can practice before the Supreme Court.

Bail granted to 5 corporates accused in 2G scam

The Supreme Court today granted bail to the five corporates accused in 2G scam. A bench headed by Justice H L Dattu granted bail to all the corporated on a surety of Rs. 5 lakh.

The accused who will be released on bail are Surendra Pipara, Gautan Doshi, Hari Nair, Sanjay Chandra and Vinod Goenka
The court has granted liberty to CBI to apply for modification of the order if any of the accused abuses the bail granted to them.
Details later

Arguments of Ram Jethmalani in SC in Amit Shah bail cancellation case on 23.11.2011

Bench of Justice Aftab Alam and Justice Ranjana Desai

Ram Jethmalani appearing on behalf of former Gujarat Home Minister Amit Shah resumed his arguments in Supreme Court.

During his arguments Jethmalani touched various point like background of Sohrabuddin Sheikh, Law on bail, Supreme Court's judgment on bail, Evidence of Patel Brothers, Allegations against Amit Shah in Chargesheet, Fact that Tulsiram Prajapati was not an eyewitness of abduction of Sohrabuddin and Kausar Bi and Evidence of Azam Khan

Background of Sohrabuddin Sheikh

Starting his arguments before the bench Jethmalani, told the apex court that Sohrabuddin was a terrorist and was convicted under TADA. According to Jethmalani Sohrabuddin received arms regularly from Pakistan for local distribution. Sohrabuddin was on bail when he was involved in the popular builder shoot out case and alleged murder of Rauf Lala in udaipur. Jethmalani went on to argue that Gujarat was getting a bad name because of Sohrabuddin killing. According to Jethmalani, Sohrabuddin was made a posterboy during last election ..

Jethmalani also put forward an alibi for Amit shah's contact with Narendra Amin at a time when Sohrabuddin was killed. Shah was in contact wit Amin over a kidnapping case in Gandhinagar.
While judges observed that there appears to be much of a coincidence and there are glaring circumstances that suggest Amit Shah's involvement. The bench also observed that Judges after Sohrabuddin case was given to CID for investigation, a day later Amin was transferred to CID for investigating the case.

Moreover days after police officer Solanki sought permission to interrogate Prajapati, Vanzara was transferred as DIG border range and within two weeks Prajapati was killed.
Law on Bail

Starting his arguments on Law on Bail Jethmalani informed the court that it is a settled law that bail is the rule and jail is the exception. He tried to convince the court that a decision to grant or refuse bail depends on many things like justice, liberty, public safety etc. Referring to the judgments of Justice V R Krishna Iyer, Jethmalani argued  “...the personal liberty of a person is too precious. while deciding the bail application, a judge needs to follow the basic principles of law rather than what he thinks personally. Bail should not be withheld as a matter of punishment to an accused. While conisdering bail a judge needs to see that the evidence before him puts such a dark picture of the accused that if he is given bail, he will flee for the rest of his life rather than spending rest of his life in jail...”

Jethmalani also informed the court that while considering bail, the court needs to consider three factors which are 1st Charge on the accused, 2nd Nature of the evidence against the accused and 3rd Punishments prescribed in law. Accordingly a bail can not be denied for punitive purposes.


While citing the judgments of the Constitution bench 1978/1/SCC/579 , Ram Jethmalani referred to the Golden Rule that GRANT OF BAIL IS A RULE AND JAIL IS AN EXCEPTION

Justice Aftab Alam was quick to react by saying that when he was a lawyer, no judge would listen to this rule. “...there are always some judgments which are difficult to follow...” observed Justice Alam. Ram Jethmalani was quick to answer by saying “...I hope you should not condone this kind of judicial indiscipline...”

At this point of time, Ram Jethmalani referred to few judgments of the Supreme Court on Law on Bail. According to Jethmalani, the restriction under section 437 of the CrPC is not applicable on High Court and the Sessions Courts. “Object of the bail is to secure the attendance of the accused and even British Judges while deciding the cases relied on this rule.Grant of bail is a rule and refusal is a exception as a presumably innocent person must have the liberty to prove his innocence...” argued Jethmalani.

At this point Jethmalani also cited a recent judgment of Dalbir Bhandari and Justice Radhakrishnan which listed out all the per incuriam judgments on the subject. (per incuriam means a decision of the court that is wrongly decided because a judge was misinformed of law. A judgment per incuriam is not binding and has no authority)

Jethmalani also argued that most of the judgments cited by the CBI could not have been cited as they were not applicable to this case.
Evidence of Patel Brothers

Advancing his arguments on the role of Patel brothers Jethmalani accused them of concealing the information from Gujarat Police. Jethmalani alleged that both the Patel brothers knew that it was Sohrabuddin who was behind the firing incident at Popular Builders office and in the FIR they didnt give any clue t hat Sohrabuddin was known to the Patel brothers. They concealed his identity. As a result this case remained undetected because there was no cooperation but there was an attempt to conceal the facts.
Allegations against Amit Shah in Chargesheet

At this point, Jethmalani also mentioned the allegations against Amit Shah made in the chargehseet.One, in the chargesheet there is an absurd allegation that this firing incident was done for extortion. There is no evidence to show any extortion was practiced upon Patel brothers at any time and two, another absurd allegation was there the false shooting was engineered for justifying Sohrabuddin arrest later on.

Role of Kalimuddin

At this point of time Jethmalani informed the court about the circumstances which led Sohrabudding to come out of the hiding. According to Jethmalani Sohrabuddin went underground from 8.12.2004 and he emerged in Rajasthan. Jethmalani also alleged that Sohrabuddin murdered Rauf Lala.  Jethmalani also said that Sohrabuddin was hiding in a village in MP and he did not come out unless he got the services of kalimuddin.

At this point Jethmalani informed the court about who was Kalimuddin. Jethmalani alleged that Kalimuddin was a murderer of a DIG in Andhra Pradesh and was under the protection of the state government.He had good links with IB. Jethmalani also informed the court that Kalimuddin had arranged for two tickets of the bus trying to make a point that in reality Sohrabuddin was not accompanied by Prajapati.

(Here Ram Jethmalani is also trying to convey that Kalimuddin got to know about Sohrabuddin from IB)
Fact that Tulsiram Prajapati was not an eyewitness of abduction of Sohrabuddin and Kausar Bi

(At this point Ram Jethmalani blasted CBI for fabricating evidence. He argued to prove that how the story that Tulsiram Prajapati was an eyewitness to Sohrabuddin abduction is totally false. Jethmalani told the court that the bench will be surprised to know a new fact )

Ram Jethmalani informed the court about the conduct of Sohrabuddin Sheikh during his stay with Kalimuddin. “…What did he do during the time when he stayed with Kalimuddin? During those days, he threatened the marble lobby in Rajasthan and he terrified them so much that the marble lobby agreed to pay 25 crore rupees. And who goes to collect that mony? It was Tulsiram Prajapati who was his long time accomplice. When Sohrabuddin left Hyderabad, Prajapati was no where in Hyderabad. He was sent to Bhilwada to collect the extortion money. These fabricators of evidence don’t realize what they have done to their case…” shouted Jethmalani.

Hearing this fact, Justice Alam expressed surprised that why this fact had not been mentioned earlier? To this, Jethmalani said that he came across this fact just a day before. Justice Alam said that this fact was very important

“…They have been misleading the court all along. Prajapati was not with Sohrabuddin otherwise, Kalimuddin would have arranged for three tickets but he had only got two tickets. There are witnesses in Bhilwada to prove that Prajapati was there. It was there duty to tell the court about this. They have been trying to defeat the judicial duty and commit a fraud on the court…” argued Jethmalani.

Evidence of Azam Khan

(At this point of time, Ram Jethmalani informed the court how the evidence of Azam Khan was created)

Jethmalani informed the court that Prajapati was arrested in Bhilwada and was sent to Udaipur Jail. In that jail another criminal Azam Khan was there. Azam was promised that they will be helped in criminal cases against them if he deposed against Amit Shah.

(Azam Khan had told in his statement that Tulsiram Prajapati had told him that he, Prajapati, felt guilty and thinks that Sohrabuddin died because of him.)

Jethmalani questioned the testimony of Azam Khan saying where did Prajapati told Khan that he was travelling with Sohrabuddin and he was an eye witness to the abduction of Sohrabuddin and Kausar Bi. Jethmalani also brought it to the notice of the court that Prajapati wrote letters to NHRC and the Collector fearing for his life.

“...Even in those letters, Prajapati has mentioned nowhere that he was a witness to the abduction of Sohrabuddin and Kausar Bi. He was asking for protection but nowhere has he mentioned my name. This gentleman never claimed to be an eyewitness and to link him to the encounter is totally wrong. This excludes the possibility of he being an eyewitness...” said Jethmalani.

What Azam Khan says about the encounter? Azam says that Tulsiram Prajapati was feeling guilty. Azam Khan should have a defense witness rather than a witness for the prosecution. Azam Khan says that it was Sohrabuddin who arranged for the shooting at Popular Builders and Sohrabuddin is not the person who is unknown to Patel brothers. Why did they file a false FIR? The real fact is Sohrabuddin wanted to recover some money from Patel Brothers and he only wanted to terrify them rather than killing them.

Azam Khan proves that FIR filed by Patel brothers was false and intended to conceal Sohrabuddin’s reasons for doing so. In fact the Gujarat Police has filed a case under section 179 for filing a false FIR.

Arguments Concluded for the day.