Marital rape

 

Statue

1. 375 IPC, 1860 - Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15y of age is not rape. 
2. Common Law Origin - Sir Mathew Hale CJ in History of Please of the Crown
1. the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot rectract.

Important Points

1. 375(2) IPC sexual intercourse b/w man and wife being a girl b/w 15-18 of age is rape?
1. Exception carved out in IPC creates an unnecessary and artificial distinction b/w married girl child and unmarried girl child and has not rational nexus with any unclear objective sought to be achieved.
2. Independent Thought Vs Union of India WP 382 2013 - J Madan B Lokur
2. 172 Report on review of Rape laws - the Law commission 
1. Increase marriage age from 15 to 16y for girls
2. the idea of remove 375(2) IPC was not accepted
3. 2013 - Report of Committee on Amendment to Criminal Law by Justice J.S Verma
1. Recommended removal of 375(2) IPC
1. Marital or other relationship b/w the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation
2. relationship b/w accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity.
3. fact that the accused and victim are married or in another intimate relationship may not be regarded as mitigating factor justifying lower sentence for rape
4. Report pointed out that the exemption for marital rape stems from a long out dated notion of marriage which regarded wives as no more than the property of her husbands
4. 2018 - Nimeshbhai bharatbhai Desai Vs State of Gujarat
1. Marital rape is serious matter though, unfortunately it is not attracting serious discussion at the end
2. A women is no longer the chattel-antiquated pracices labeled her to be. A husband who has sexual intercourse with his wife is not merely using a property , he is fulfilling a marital consortium with a fellow human being with dignity equal to that he accords himself. He cannot be permitted to violate this dignity by coercing her to engage in a sexual act without her full and free consent
5. Decriminalizing adultery
1. Lord Keith in R vs R - marriage is in modern times regarded as a partnership of equals and no longer one in which the wife must be subservient chattel of the husband.
6. Privacy Judgment 
1. Privacy also connotes a right to be left alone, it safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his / her life
2. Privacy protects heterogeneity and recognizes the plurality and diversity of our culture. 
3. while legitimate expectation of privacy may vary from the intimate zone to the private zone and from private to public arenas, it is most important to underscore that privacy is not lost or surrendered merely because the individual is in a public place.
4. Privacy attaches to the person since it is an essential facet of dignity of the human being.
7. State of Maharashtra Vs Madhukar Narayan Mardikar AIR 1991 SC 207
1. Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes
2. so also it is not open to any and every person to violate her person as and when he wishes
3. she is entitled to protect her person if there is an attempt to violate it against her wish. 
4. She is equally entitled to the protection of law.

 

300 CrPC

 

Statue

1. 300 CrPC
2. Article 20(2) of the Constitution of India

Important Points

1. nemo debt bis vexari
1. No man shall be put twice in peril for the same offence
2. autrefois acquit
1. the person has been acquitted on a same charge on which he is being proseucted.
3. 300 CrPC embodies the following 2 principles
1. nemo debt bis vexari
2. autrefois acquit 
4. 300 CrPC principles are slightly different from principle of double jeopardy embodied u/s A20(2) of the constitution of India
5. 
   

OU Law CrPC

 Date : 5th August 2021

Abetment - 306 IPC

 

Important points

1. To bring a case within the provision of Section 306 IPC, there must be 
1. Case of suicide
2. in commission of said offence, the person who is said to have abetted the commission of suicide MUST have played an active role by an act of instigating or by doing a certain act of facilitate the commission of suicide.
2. Mere harassment without any positive action on the part of the accused proximate to the time of occurrence which led to the suicide would not amount to offence u/s 306 IPC.

Case Law

1. Amalendu Pal Vs State of West Bengal 2010 1 SCC 707
1. Active role and certain act to facilitate commission of suicide
2. mere harassment without positive action and proximate to time of occurrence 
2. Chitresh Kumar Chopra Vs State ( Govt of NCT delhi ) 2009 16 SCC 605
1. Abetment by a person is when a person instigates another to do something
2. Instigation can be inferred where the accused had, by his acts or omission created such circumstances that the deceased was left with no option except to commit suicide.

Perjury - 193 IPC r/w 340 CrPC

 

Statue

1. 193 IPC r/w 340 CrPC

Important Points

1. Mere contradictory statements NOT itself always sufficient to justify prosecution for perjury.
2. It must establish that false statement was made INTENTIONALLY
3. Even when it is concluded that it was intentional false evidence - 
1. Court has to form opinion whether it is EXPEDIENT in the interest of Justice to Initiate an inquiry into offence of false evidence.
2. Consider overall factual matrix and probable consequences. 

Case Law

1. KTMS Mohammad & anr Vs UoI 1992 3 SCC 178
1. Para 37
1. The mere fact that a deponent has made contradictory statements at two different stages in a judicial proceeding is not by itself always sufficient to justify a prosecution for perjury under section 193 IPC 
2. But it must be established that the deponent has INTENTIONALLY  give a false statement in any stage of the judicial proceeding or fabricated false evidence for the purpose of being used in any stage of the judicial proceeding.
3. Further, such a prosecution for perjury should be taken only if it is expedient in the interest of Justice.
2. Amarsang Nathaji Vs Hardik Harshadbhai Patel & Ors 2017 1 SCC 113
1. Offense of false evidence and offense against public justice and more specifically referred in Section 340(1) CrPC, having regard to the overall factual matrix as well as the probable consequences of such a prosecution.
2. Even in a case where the Court comes to the conclusion on the aspect of intentional false evidence, 
1. still the court has to form an opinion whether it is expedient in the interest of justice to initiate an inquiry into the offense of false evidence, 
1. having regard to the overall factual matrix as well as probable consequences of such prosecution.

ADR

Date : 5th August 2021

1. Jamboard - Civil Court Jurisdiction

Date : 4th August 2021

1. Jamboard ( Multi pages )

Date : 3rd August 2021

1. Jamborad

Date : 28th July 2021

1. Jam board 
2. 

Date : 26th July 2021

1. Jamboar

 Books

1. Anirban Chakrborthy on ADR - Lexis Nexis
2. Mediation - Sriram Panchu, Adv ( Lexis Nexis)
3. O.P. Malhotra, Indu Malhotra on Arbitration (Reference)
4. Supreme Court Mediation Manual
5. Madabhushi Sridhar - ADR ( Student edition)

Passport

 

Statue 

1. Section 6(2)(f)  of Passport Act , passport authority SHALL refuse to issue a passport or travel document for visiting any foreign country, if a criminal proceeding is pending against the applicant in India. However that said provision does not provide for refusing to issue a passport for a person who intends to travel back to India. 

Important Points

1. Right to travel cannot be curtailed by refusing to renew passport on pretext of pending criminal cases
2. Passport Authorities
1. Refuse issuance of a fresh passport to a person against whom a criminal case is pending in India
2. Same rule would not apply for renewal of passport

Case Law

1. Satwant Singh Sawhney Vs D. Ramarathanm AIR 1967 SC 1836
1. U/s A21 of Constitution of India, no person can be deprived of his right to travel except according to procedure established by law.
2. Petitioner right to travel cannot be curtailed on the pretext that a criminal case is pending against him by refusing to renew his passport.