Written by Hritam Saha
Love means an intense feeling of affection and therefore, it is abstract. However, there are ways to express one's love towards another. Is sexual intercourse the ultimate way of expressing one's love to another? If yes, then why 'having sex' and 'making love' are different from each other. The former only fulfills physical urges while the latter interweaves two souls.
Ancient past says that every man is allowed to have sex with a woman who has the potential of giving birth. Even if that woman is married but her husband is not with her, all the men are allowed to have sex with her. The rationale behind a woman 'open for all men' was— a woman, by not giving birth, shall not waste her fertility period. However, the present prescribes that 'people' should have sexual intercourse only after getting married, and it perhaps sounds more liberal and civilized, firstly, for its nondiscrimination between a man and a woman as it uses a gender-neutral word 'people' and secondly the 'open for all men scheme' is now been buried. Now, one can argue about live-in relationships which some sarcastically identify as hire and purchase agreement as they say that— firstly, two people hire each other to understand their togetherness’s merits and demerits thereafter if they find each other suitable then only they will purchase each other by marrying.

Does a legal marriage confer a spouse the 'right to compel' the other spouse for having sexual intercourse or does it merely allow a spouse the 'right to pursue' the other spouse for having sexual intercourse?

Popular belief is that a husband has the ‘right to compel’ his wife for sex because of the exception to Section 375 of IPC that is— “Sexual Intercourse by a man with his own wife, the wife not being under 15 years of age, is not a rape”. The exception may give rise to a question that how a woman who is below 18 years and therefore a child, under The Prohibition of Child Marriage Act, 2006 (hereafter ‘said Act’ and amended till date) can legitimately marry in India. We must observe that Section 3 of the said Act can only make a 'child marriage' invalid if any of the spouses who was a child at the time of marriage institutes a case before the court. However, Section 12 of the said Act does make a child marriage invalid ‘without anyone instituting a court case’ but only in some specified circumstances, those essentially in a nutshell are immoral tactics used for getting the child married. Therefore, child marriage when gets compelled by immorality is ‘invalid without court’s interference’ but when gets persuaded can be made ‘invalid only by court’s interference’. Hence, child marriage as such is not prohibited in India.

Why is the husband not having the 'right to compel'?

In the said exception, the word ‘forced’ before ‘sexual intercourse’ has not been used but the people are adding the word 'forced' to propagate that ‘forced sexual intercourse’, by that said exception, is allowed for a husband once his wife attains 15 years of age or is above 15. This 'forced' proposition is wrong because The Protection of Women from Domestic Violence Act, 2005 (hereafter ‘D.V. Act’) protects women (whether married or not) from ‘forced sexual intercourse’ by defining “physical abuse” and “sexual abuse” as the pain inflicted to, and any act that undignified, the life and limb of a woman. However, this act does not penalize the abuser for abusing a woman rather it protects a woman from abuse by a protection order (Section 18 of the D.V. Act), although if such protection order is violated by the abuser then this act can penalize the abuser (Section31 of the D.V. Act). Furthermore, Section 498A of IPC penalizes the abuser for his/her sexual violence against the aggrieved.
Therefore, every woman (whether unmarried or married) irrespective of age and religion is protected from ‘forced sexual intercourse’ under the law of this land. Therefore if the women are protected, even from their husband, from ‘forced sexual intercourse’ and the corollary is that the husbands are not having the ‘right to compel’ then what does that exception say— it merely, although wrongly, reduces the age of consent for married girls 15 years from 16/18 years? One of the examples that Section 375 identifies as rape is this— ‘a man is said to commit rape who has sexual intercourse with a woman with or without her consent when she is under 16 years of age’. Therefore, under this clause, the age of consent for a woman is 16 however The Criminal Amendment Act of 2013 has made it 18. The above-said exception mandates the age of consent for a married woman as 15. Therefore, one can argue that to set the age of consent for married women on a different footing from the unmarried woman, the said exception has been included. Henceforth, the question arises— why the age of consent for unmarried women is 16/18 and that of married women is 15? Is it that a woman after getting married instantaneously becomes mature? Or is it for the husbands' hurriedness of having sexual intercourse with their wives that the age of consent for married women is reduced? The answers to these questions are kept open for future discussions.

Right to pursue, Right to be excited, and Right to be violent

No doubt that when two people get married their marriage gives birth to multifarious mutual expectations and sexual intercourse is of those expectations. The courts, time and again, have held that sexless marriage is a ground for seeking divorce therefore a spouse expecting sexual intercourse from another spouse is neither bad in law nor in morality.
‘Right to pursue’ is a right that both spouses are having. But the ‘right to get excited’ for having sexual intercourse and ‘right to be violent’ on the rejection to have sexual intercourse is different from one another, and for the latter, there is the law of the land punishing the same. The seminal question is— why is the age of consent different for a married woman than that of an unmarried woman? The sanction of marital rape by that said exception is a misconception based on sui generis misinterpretation.
There are arguments saying— “Article 14 allows positive discrimination between equal and unequal but not between an equal and equal and as unmarried women are different from married women, hence they are not equal to the latter and therefore, different age of consent is legally sustainable”. But such an argument is wrong because a woman does not cease to be a woman after getting married.

Love, I feel, cannot be forced to get developed, however, nourished to get developed. If you say ‘NO’ then I may ask ‘WHY’ and if you reply with nothing, just nothing, I shall wait, curiously wait, not for the day of our blending but why have you said 'NO'.

Edited by Siddhant Sharma

Write a comment ...

When there is a deadlock at the headlock of corona and politics....

[Continued].... the people of India have to resort to voting at the expense of their life; political ideologies incarnate into political idiosyncrasies incarcerating the idea of the 'Union of States'; a relay race of shifting responsibility without a finishing point takes place between the government of a State and the government of India and the arrival of many other alike beings take place.All when summed up makes the life and limbs of the common people susceptible to the ears and eyes of the COVID-19.History is a witness, which when called upon, has reiteratedly enunciated that war and crisis makes a government unipersonal. Such power then suffuses over every branch, for instance, Reporters Across Borders purported that 38 countries have hijacked freedom of the press.Many governments have enacted emergency laws to address the pandemic, like new powers of detention, closing non-essential businesses, limiting public gatherings and movement, monitoring the streets to ensure they remain inside.Some countries have also invoked emergency like Armenia, Estonia, Georgia, Latvia, Moldova and Romania. These actions though made in good faith have inseparable repercussions, for instance in Philipines, people are violently detained, belaboured and even killed for being cold with the restrictive orders, and when the actions of the authorities were questioned they justified themselves by colouring their cause of actions with unintelligible crayons. Miniscule of Confrontations has also been witnessed between the armed forces and people in the United States, Greece and Germany.It is a watertight proposition that lockdown has sent the human rights in hibernation though such has been done with good intentions. Still, severing the accountability from the largest picture of lockdown was a cancerous dream that indeed took the form of reality.In India, the largest picture was the inexplicable ever walking hunger march of the migrant workers which perhaps would remain a never-ending march for their families. The government of a state has invested their burden to another state stating the workers are not domiciled in their state. But that is why they are called migrant workers, not just workers. In such circumstances, the centre had graced the situation with absolute silence even though they have conveyed ration to the states but had not pressed anything for the migrants. At that time the Supreme Court, in its wisdom, deemed fit to take a resolution of disappearing with the sunset and not to rise with the sun.Are not these instances exemplifying the uninterrupted dictation of the governments?During the election this year, a newspaper in its print considered voting as the 'dance of democracy'. But I think it was a curtain-raiser. The subsequent substantive of the story was the 'uninvited dance of life shedding'.Politics in simpler and unharmful terms are disagreements that are conciliated and reconciled by deliberations.But here exists palatable incommunicado between the people in power due to their political constipation. But their speeches at biggish stages were that incandescent that it called upon horde of people to throng in their sabhas.Later, it was understood that people were there to assuage their stomach emptiness, not to imbibe the rhetorics of ever germinating politicians, because the number of people who were present there in a party's sabha did not commensurate with the number of votes that the party has received.The pandemic had a huge impact upon the economy, resulting in the imbalance of an already imbalanced socio-economic structure of the society which has been the blue and black to those people whose stomach's appetite solely compliments their daily actions.Comparing the GDP havoc endured by the countries, to approximate one country's efficacy over another against this pandemic is unwanted because every country has been unavoidably compelled by the virus to receive its invitation of downfall in every aspect, and the attendance of the people of some countries to such invitation has been either more or less but not null.Yes, it is indisputable that unemployment, societal disjunction, hunger, domestic violence, depression, etc., all together have increased. But can anybody assert that these were never there before this pandemic? I think the answer would be a big NO.'Health is wealth.' When we say this, things like unemployment and poverty are very much present, thus, we don't have a vibrant economy and the corollary is 'no wealth'. Hence, the other name of 'health is wealth' is, "as there is no wealth there is no health".Some say that a vibrant health system would not have been a guarantee against this pandemic. Yes, indeed, it could not have been a guarantee but it could have been a warranty, that is assurance rather than the commitment, that is guarantee. But here, the government knows that a vibrant health system could not be a shield of guarantee without even trying to make it happen. The drops of Astrology and drops of science are both in positives. Therefore they repel each other.The game of touchable and untouchable, black and white, etc. have been widely familiar for human beings across the world. Like in India, the 'so-called upper castes' purport that they would be contaminated if they come into contact with the 'untouchables' and somewhat similar reasons are for the differences between the whites and blacks. Hence, its a game of illusory contagiousness. But the game is a bit different in the case of COVID-19. If an 'upper caste' person comes into contact with an 'untouchable', he would not get contaminated because in the light of science, there is no trace of contamination. But yeah, those people could get mentally contaminated as they claim to be. In contrast to such, SARS-CoV-2 (the virus which spreads COVID-19) can spread to all humans. Yes, you've again read it correctly, HUMANS. It does not discriminates between touchables and untouchables or whites and blacks, and one more point, this contamination can take the lives of the people, whereas in the previous case, the mentally contaminated ones take the lives of those who had 'contaminated' them as a compensation for their illusory damages.And what politics does in such cases, it encashes such disaster to transform it into a never-ending one for the sake of meeting their political ends, where end means an extension of infinite hedonism with sheer impunity.But this time, politics has averted from the game which was unfolding against the healthcare personnels. Why? Because such a game would have inflicted everyone including politics. Therefore, politics obituaries for its administrators and not for those who have chosen politics to govern them.Let's talk about the elections. Were there no ways available to cherish democracy other than to conduct the elections in this pandemic? If no, then were there no ways left for the politics to witness people's throng without creating the opportunity for the people to reach out to politics physically? Was it needed to apprise people about their past and would be, via rallies?Many in the history of India had shed blood to earn freedom, we, the people of India have tenaciously deliberated to gift ourselves a written Constitution and democracy is a vital cog of it. As said that voting is a 'dance of democracy' and to actualize democracy, elections are conducted. "Had the framers of our constitution ever conceived the thought of witnessing such dance at the expense of people's life?"We are so determined to see the dance of democracy that we have forgotten to evoke the gorgeous dance of the celebrities. At least such would have impeded us to witness the buffoon dance of the politicians and perhaps could have protected lives, but yes, the latter can be witnessed free of cost and also with a toast of food. And why not? It is performed every five years.The multi-polarization of political beliefs at the expense of uniform goal in national interest and discrimination of religious beliefs have now been adjoined by the discrimination of the technological accessibility of people as there has been seen a sharp division among classes regarding the technological means.Has this pandemic compartmentalized human beings in every aspect? The answer seems to be still under construction.The deadlock at the headlock of corona and politics may completely end one day but for the time being, the relaxation of the deadlock is in progress at the effacement of the population.But the question that will remain to be discussed is, "What would happen after the clearance of the deadlock at the headlock of COVID-19 and politics". As of now, COVID-19 is in a headlock with politics and vice versa. But after the expungement of the pandemic, will the headlock by politics to the livelihood of people, would remain? Headlock by rich to the poor, employment to unemployment, vibrant medical structure to precarious medical structure, etc? The future would author and the past would readout.The gravitation of the earth pulls people down for the sake of stability. But the human structured rockets supersede this pull to expel itself from the earth to the space. We human beings are not rockets. Therefore no one is more and no one is less in respect of being stable. Therefore one may discriminate against an individual in every aspect and respect other than the means of stability. Because stability is the law of nature but not of humans.Views are personalWritten by Hritam Saha(Edited by Siddhant Sharma)

Does a legal marriage confer a spouse the 'right to compel' the other spouse for having sexual intercourse or does it merely allow a spouse the 'right to pursue' the other spouse for having sexual intercourse?

Why is the husband not having the 'right to compel'?

Right to pursue, Right to be excited, and Right to be violent

The Drain Team

The Drain is a news, analysis, opinion and information initiative. We shed light on the overlooked stories which are shaping the contemporary world. We aim to bring out stories which are usually ditched and drained by the mainstream media, but are of utmost importance to the people.

5 Followers

1 Following

Why Us versus Us?

The Drain Team

The Beats of Equality Lie on the Drum of Differentiation

The Drain Team

Sedition is manipulation

The Drain Team

"Voluntary Conversion" is the change of one's medium but identifying oneself with every religion at the time of election is an "Apprehension of having Loose Motion" after the result of the election

The Drain Team

Uniformity is the endeavor of the Constitution but not its absolute mandate

The Drain Team

Fundamental is not Basic

The Drain Team

Cuba to Ukraine: Similar story with roles interchanged

The Drain Team

Constitution and family

The Drain Team

Constitutionalism lies in certainty

The Drain Team

End, a Contradiction

The Drain Team

Railway exam controversy: Mismanagement or Incompetency?

The Drain Team

Inquisitiveness, thunder, valor, perspiration, and spirituality— explosion of a persona that shook and is still shaking the world

The Drain Team

AFSPA: Constitutionality sometimes leads to absurdity

The Drain Team

I do what I do, I do by compulsion but not by option

The Drain Team

Why 'WE THE PEOPLE OF INDIA'?

The Drain Team

Bargain on equality amongst constitutionally privileged animals

The Drain Team

Partially read = Wrongly read

The Drain Team

Why The New York Times is searching for a biased reporter in India?

The Drain Team

When there is a deadlock at the headlock of corona and politics....

The Drain Team