Monday, August 5, 2013
Thursday, May 2, 2013
Failure of Marital property distribution laws (Learning from China ?)
The Chinese Supreme Court very recently ruled that from now on, the person who buys the family home, or the parents who advance them the money, will get to keep it after divorce. In particular, more than a third of all marriages in Beijing, Shanghai and Guangzhou now end in divorce, and the fastest-growing segment of society is those aged 25 to 34. Almost half of all divorces see a court squabble over the family assets. "I would choose a luxury house over a boyfriend that always makes me happy without hesitation," said one 24-year-old contestant on If You Are the One, one of China's most popular television dating shows. "And my boyfriend has to have a monthly salary of 200,000 yuan (£18,900)," she demanded. China and Indian have the same sort of demographics and people of both China and India suffer from the same level of hyper materialism. In such circumstances the introduction of property distribution laws based on senseless feminist pressure leads to a severe disruption in the society. Why are we making the same mistake that China made on property division on the unsubstantiated assumptions and presumptions of a few women's organizations?
Property laws will fail in a hypergamic Indian marriage market
Indian marriages are essentially hypergamic in nature, meaning the brides have an inherent and very strong desire to move up in the socioeconomic ladder through marriage. The Indian society like other societies is like a pyramid with increasing level of higher socioeconomic status as we move up the pyramid. This also means that as we move up pyramid the supply of boys with higher socioeconomic status declines sharply. This leads to higher number women from a lower level in the pyramid competing for a relatively smaller number of men higher in the pyramid. This inherent desire of families to place their daughters in a better socioeconomic position after marriage (higher in the pyramid) leads to a supply demand problem and leads to dowry. Dowry is a prize which the bride’s family pays to elevate place their daughter in a better socioeconomic position in the pyramid. Also men prefer to choose brides from a lower socioeconomic background with the belief that they will be more happier after marriage and will form better caregivers.If property laws are introduced it will lead utter chaos in the society.
1. Women from lower level will compete and choose only those men who own property. As a consequence poorer men who do not own any property will find it extremely hard to find a match at their own strata.
2. Like China, property will become the determining factors for women in choosing a husband. Women will find a man owing property an extremely attractive match while rejecting the ones who do not,
3. Marriage will look like an increasingly riskier proposition for men
Copy pasting American laws in an Indian context is a sure shot recipe for disaster
If we define household work as the "effort" that will entitle the wife to 50% of the assets then in joint families the husband’s mother, sister , and father also work for the welfare of the household the same time period as the wife does and on this premise they too will be entitled to equal shares of the property when it is being distributed. So in a marriage of 2 years in a joint family household the assets acquired by the spouses will be essentially divided into 5 equitable shares(husband, wife , mother-in-law, father-in-law and sister-in-law) and wife will be entitled to only one share. The above example shows the dangerous problems and issues that will occur when American laws are blindly copied in India without any thought. It is also prudent to note that marriage and family as an institution has completely failed in west on account of these laws. The failure has been so total and complete that surveys in the US have concluded that marriage is a terminal decline in west and single parent families will be new norm. Why are we trying to blindly import such laws at the insistence of a few radical women’s organizations? Do we want to destroy the Indian family system that has served us so well for 10,000 years?
Nobody except some feminist organizations feel that the law justified
Barring a handful of feminists groups speaking in favour of the law, we would want to quote from media reports some of comments from a wide cross section of the society. The comments reflect the shock expressed by the nation on this proposed amendment to award 50% of only the husbands property the wife.
a. “The wealthy or high net worth individuals can be a target. We all know women are not the only victims in marriages these days. I have handled gold-diggers myself”…This is absurd!” - Mrinalini Deshmukh ( Eminent Lawyer)
b. “A law cannot be lopsided, favouring one side over the other — the legislation has to be fair and square to all sides. Otherwise it would be ultra vires of the Constitution!”- Mrinalini Deshmukh ( Eminent Lawyer)
c. "The proposed law is already instilling a fear pyschosis in men,” Siddharth Shah, a divorce lawyer in Mumbai.
d. “This is a bad legislation,” Atindra Kumar Mukherjee, a senior divorce lawyer in Calcutta, stressing that there’s ample scope for abuse it were to come into force.
e.”Hindu Marriage Law Amendment Bill is anti-men, will destroy Indian families” – ehitavada paper Nagpur
f. “Every year, over 62,000 married men commit suicide due to verbal, emotional, economic, and physical abuse and legal harassment. The suicide rate of married men is double that of married women. One married man is committing suicide in every nine minutes.” – Indian Express Bangalore
The question of 50% property – Western law coupled with Indian Feminist Fanaticism?
What is perceived more attractive for a young hypermaterialistic female youth of modern India, a 2 crore house, coupled with a car, Half of the bank deposits, Gold and savings, all totalling over 3 crore house or her marriage? If husbands and their families are perceived by the government to be greedy for dowry (wealth), why is it perceived the young women and their families would be any different? The west does not have over 6 Maintenance laws like India does and neither does the west witness severe misuse of laws like 498a in India which has been called as “Legal Terrorism” by the honourable supreme court of India. However it is surprising to note that instead of curbing the misuse in the other matrimonial laws the government has for reasons knows nest to it has approved the formation of a new one, this one more draconian than the other. Indian Gender laws in particular are so badly drafted that they out rightly excludes even the possibility of a woman being the cause of any sort of marital discord. Irrespective of the fact on who is petitioning for the divorce, it the husband who is assumed to be one guilty of breaking the marriage.Just like a wife a husband also has every right to break out of an abusive relationship. With no legal recourse for domestic violence(DV) or marital harassment(498a) like available for wives the only tool available for Indian husbands to stay separate from abusive wives and to petition for a divorce to end the domestic harassment. However divorce is made painfully expensive for Indian husbands trying to break free from abusive wives and this law is another step in that direction.
Section 13(D) of MARRIAGE LAWS (AMENDMENT) BILL, 2010 is also grossly unconstitutional
Some sections of the bill are in clear violation of article 15 of the Constitution of India which prohibits discrimination against any citizen on grounds of religion and sex. Article 15(3) of the Constitution, (which is a subsection and BELOW Article 15), does allow the Government to make special provision for women and children, but now at the expense of discriminating against men or husbands.
a) Article 15(3) of the constitution merely provides for special provisions for women and children, it does not permit the framing of special laws which will violate the essence of the Main Article 15. Had that been the case, the constitution of India will become self contradictory. Section 13D of the bill openly discriminates against husband by awarding the choice of opposing a divorce on financial hardship solely to the wife and totally denying the same to the husband even though it is amply clear that both genders can be in equal need of financial assistance.There are many families in India today where husbands have assumed responsibilities of the household and wives are the primary bread earners. This bill will discriminate against these husbands should their wives petition for divorce. Also in many households should husbands become unemployed, ill, handicapped or infirm and should if an earning wife chooses to abandon and divorce this husband under these circumstances, the husband would have no legal recourse to seek adequate compensation from the wife on the grounds of financial hardship.The current concept of gender neutrality like that of Section 24 of the Hindu Marriage Act which takes into consideration that both, the husband and the wife can face financial hardship has been totally ignored in this Bill, specially in this section.
b) Article 15(3) of the constitution although does allow the government to make special provisions for women, but the same article cannot be used to overlook the fact that in modern India women in many cases earn a lot more than the husband and just like the husband they too have a solemn responsibility to satisfy the condition of financial hardship of her husband before getting a divorce.
Section 13D will be used as the 5th duplicate maintenance law
The duplication of laws, total ignorance of Universal declaration of human rights and principles of natural justice, non constitutional language of offering protection solely to one gender coupled with very poor implementation of Perjury laws has created a dirty labyrinth in the Indian Gender laws where mostly female litigants and their families collude and then lie to any extent without the fear of ever getting punished just to harass the husband’s family and forcefully extort money. On the other hand the government which complains regularly of the backbreaking load on the judiciary does not care when it allows the duplication of gender laws. Some sections where gender laws are duplicated are,
- Indian Maintenance laws :- Maintenance can be demanded by a wife using an 4 separate laws namely HMA 24 , HMA 25 , CrPC 125 , DV Act Maintenance provision. Most female litigants use at least 3 at any time to maximize their gains from misusing maintenance laws and causing additional harassment and causing extra judicial burden.
- Section 498A , DV :- Section 498a and DV Act 2005 was clearly not necessary when sections IPC Section 322 – Hurt & IPC Section 322 Grievous Hurt were much better laws which served the same purpose and were less prone to misuse like 498a and DV which is misused in 98% of cases according to Govt statistics. Most female litigants use both of them together just to harass their spouses.
Not having learnt its lesson from such outrageous misuse the Indian government continues to promote new gender laws which are again not “evidence” based but “assumption based” and out rightly exclude the woman from committing the same offence that it tries the man to prosecute for. Newer laws are “monetary settlement” driven and do not emphasize on “punishment” but on “settlement”! These dubious premises have given rise to an extortion and blackmail industry and have led to phenomenal distrust amongst the people of India on the Indian Gender laws. Section 13D of the Irretrievable of Marriage Bill on the same lines as explained is but essentially will be used as a tool to block a divorce until unreasonable financial demands of a wife are met and will just and will be a 5th maintenance law apart from the 4 already existing as has been elaborated earlier.
Section 13 D will lead to the husband having to “Buy” a divorce
The current version of Section 13D is drafted as below .
13 D . Wife’s right to oppose petition on grounds of “Financial Hardship”.
13D. (1) Where the wife is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 13C, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage.
There is no doubt that this amendment safeguards the concerns of women’s groups that have vocally expressed their fear of financial destitution if they are abandoned by their husbands on the irretrievable breakdown ground. However there also will be widespread misuse of this legislation since now the Husband will forced to ‘buy’ a divorce while wife can choose to walk out whenever she feels , also a husband who is unwilling or incapable to ‘buy’ his way out of a divorce from the wife will be dragged into a lifelong battle of judicial and spousal abuse for divorce since the wife may drag the case on this premise for years together.
Section 13D of the act hence reduces the husband to a mere witness to the proceedings and grants the absolute control of circumstances and the decision making in the case in the hands of the wife. Husbands will be forced to buy their way out of abusive wife’s and this will lead to wide spread extortion.
Also in a scenario where the wife is the petitioner for divorce and is guilty of adultery, crime against the husband and his family including but not limited to Domestic Violence, Financial violence , Emotional violence or misuses the other unconstitutional gender legislations like 498a etc , the wife can choose to just walk away with the divorce without having to satisfy any conditions whatsoever . In other words the husband will have absolutely no defence and will be stuck with court cases running for years on end while the wife can happily get the divorce and remarry as she likes.
Discrimination against Indians Fathers in Child Custody cases will increase
Clearly, the motivation to stay within a marriage changes dramatically reduces under a no-fault divorce framework and same will affect child cutody. To mitigate the worst effects of these distortions on children, 35 US states have found it necessary to introduce a strong presumption of gender-neutral shared custody and parenting laws, as well as gender-neutral alimony and child-support laws. There is a now a large body of Case Law on Joint Custody. In a Landmark judgement from United States , KENTUCKY: Chalupa v. Chalupa, Kentucky Court of Appeals, No. 90-CA-001145-MR; (May 1, 1992)., Judge Schroder, wrote for the majority:
“A divorce from a spouse is not a divorce from their children, nor should custody decisions be used as a punishment. Joint custody can benefit the children, the divorced parents, and society in general by having both parents involved in the children's upbringing.... The difficult and delicate nature of deciding what is in the best interest of the child leads this Court to interpret the child's best interest as requiring a trial court to consider joint custody first, before the more traumatic sole custody. In finding a preference for joint custody is in the best interest of the child, even in a bitter divorce, the court is encouraging the parents to cooperate with each other and to stay on their best behavior. Joint custody can be modified if a party is acting in bad faith or is uncooperative. The trial court at any time can review joint custody and if a party is being unreasonable, modify the custody to sole custody in favor of the reasonable parent. Surely, with the stakes so high, there would be more cooperation which leads to the child's best interest, the parents' best interest, fewer court appearances and judicial economy. Starting out with sole custody would deprive one parent of the vital input.”
A similar landmark judgment was passed in GEORGIA: Court of Appeals of Georgia, Case No. A93A0698, 7/2/93 IN the INTEREST of A.R.B., a child:
In a unanimous opinion, presiding Judge Dorothy T. Beasley stated: “Although the dispute is symbolized by a 'versus' which signifies two adverse parties at opposite poles of a line, there is in fact a third party whose interests and rights make of the line a triangle. That person, the child who is not an official party to the lawsuit but whose wellbeing is in the eye of the controversy, has a right to shared parenting when both are equally suited to provide it. Inherent in the express public policy is a recognition of the child's right to equal access and opportunity with both parents, the right to be guided and nurtured by both parents, the right to have major decisions made by the application of both parents' wisdom, judgment and experience. The child does not forfeit these rights when the parents divorce.”
These liberal democracies even go so far as to ensure that Grandparents have visitation rights to ensure that a custodial parent cannot erase them out of their grandchildren’s lives. They are also signatories to the Hague Convention that ensures that a divorcing spouse cannot go “forum shopping” to a favourable jurisdiction like India in particular to take shelter under the glacially slow judiciary and severely anti husband laws.
None of these checks and balances exists in the canon of Indian Family Law. Notably, Indian Family Law does not even pretend to operate under gender-neutral presumptions. The child-support responsibility falls disproportionately on the father, as does alimony on the husband. Similarly, child custody of a minor is rarely granted to the father. Finally, the father is almost always the primary legal guardian of the Child. Even the terminology in the Hindu Marriage Act is not gender-neutral: it refers to the rights and obligations of the “the husband” and “the wife”, rather than “the spouse”.
If one spouse can orchestrate a breakdown and unilaterally terminate a marriage this ground, it necessarily follows that the Family Laws governing shared parenting, child-support, alimony, and grandparent’s visitation rights must also be simultaneously overhauled. These laws must ensure that a divorcing wife cannot take advantage of a “no-fault” law to financially and emotionally exploit other equally-legitimate stakeholders in a child’s life. They must also ensure that one spouse cannot walk away the tangible and intangible assets acquired during the marriage in a winner-take-all contest. The glacial, idiosyncratic, wheels of the Indian Judiciary all but guarantee that fathers are severely discriminated against once this laws turns into existence. As regards the executive branch’s ability to enforce visitation and child-support, the less said about it, the better.
False 498a and DV cases will continue to run even after divorce
• This bill will reward the wife with the divorce while condemning lakhs of innocent mothers and sisters the torture of a criminal trail in Indian courts in 498a and DV cases since it does not mandate the closure of these matrimonial cases at the time of divorce? The Bill essentially grants freedom and happiness to wives through a divorce but is totally silent on how the false and frivolous cases that are filed by wives be dealt with, even when the wife gets the divorce and happily remarries? Right now during a mutual divorce all the 498a and DV cases are normally quashed so that the families on both sides can part peacefully. The present draft of the bill aims to take away this resort too as the wife would now simply go away with a unilateral divorce, with the pending 498a and DV case running for years, which the wives normally do not even care to attend. We would like to reiterate the government facts that over 90% of all 498a are false and over 80% of all DV cases are filed with malicious intentions although the government continues to downplay the same.
• The Law Commission’s 71st Report from where this recommendation was copied was drafted way back in 1978, when biased laws like 498a and DV Act were not in existence which were enforced only in 1983 and 2006. Hence Law Commission had not considered quashing of such cases against husband and his families as a precondition at that time, while granting divorce under Irretrievable Breakdown of Marriage.
• Quashing all cases between the husband and wife while granting divorces under Irretrievable Breakdown Marriage, would immediately reduce the crores of pending cases in courts and will provide relief to crores of aged mothers and sisters condemned to a lifetime of judicial apathy in Indian courts due the Indian gender laws.
• Moreover there would be cases where the husband is all in will to save his marriage, so that his child can have both parents, but under the present format of the Bill, the husband will not have any legal remedy to save his own marriage, even for the sake of his own child.
Demands and Recommendations
We recommend that the following sections be inserted into the MARRIAGE LAWS (AMENDMENT) BILL, 2010 to ensure fairness to both genders and to reduce the overall load on the Indian judiciary.
Recommendation 1 . Amend 13D to make the law gender neutral(both husband and wife will have right to oppose divorce on financial hardship clause)
13D to amended to ensure that both spouses may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to them and that it would in all the circumstances be wrong to dissolve the marriage. The decision of satisfying the financial responsibilities will then depend on the court and this would be decided based on the merits of the case.
13 D needs to be amended to
- Change “wife” to “respondent” , change “her” to “them”
“13D. (1) The respondent to a petition for the dissolution of marriage by a decree of divorce under section 13C, may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to them and that it would in all the circumstances be wrong to dissolve the marriage.”
Recommendation 2 . Equal share in Debt also
With credit comes debt and the wife cannot be entitled to only credit whereas the husband will be left with the burden of debt. There has been a defined mechanism to ensure that he debt incurred during the matrimonial time-frame is also shared equally between the husband and wife.
Recommendation 3. Objective definition of “Financial Hardship”
The word “financial hardship” must not be allowed to be interpreted in a subjective manner since subjective interpretation of this term and will ultimately turn into a tool for extortion and will be used to block a divorce till the unreasonable financial demands of the respondent are fulfilled. One respondent person may claim Rs 10,000 /- to satisfy their face financial hardship condition while another respondent with a mentality for extortion may demand Rs 1 Crore to fullfill the condition of financial hardship. Unless an objective definition of “Financial Hardship” is provided the divorce process will again be reduced to but a dirty fish market like it has become now where the respondents will again essentially bargain the “price” of the divorce citing the condition of financial hardship and block the divorce till this condition is satisfied. The tenure of the marriage and the relative capability of the respondent must also be clearly spelled out while determining “Financial hardship”. Also there must be a predefined upper limit on the time and amount that can be paid to satisfy this condition. Financial hardship terms must be defined based on the living standard of the nation and not on the unreasonable demands of the respondent. The ministry can learn the objective and mathematical implementation of divorce from the Laws from the United States where in the state the Texas for example alimony cannot be sought if the marriage is not more than 10 years old. Even when is granted, the alimony amount cannot exceed one 1/3 the income of the payer or at the most $2500, whichever is lesser. Further alimony is tax deductible on the payer and taxable on the receiver.
Recommendation 4.Condition of finishing all litigation before divorce is granted
Unlike the west in India a divorce case is normally accompanied by many cases namely, maintenance child custody, 498a, adultery, domestic violence, IPC Sec 506 and many more. Most of the tomes multiple maintenance cases and 498a and DV are filed together to harass the husbands and his family members and to extort money through nefarious means.
In the case of Swati Verma vs. Rajan Verma reported in (2004) 1 SCC 123 the honourable Supreme Court of India was cognizant of the same concern when it averred. “ Having perused the records placed before us we are satisfied that the marriage between the parties has broken down irretrievably and with a view to restore good relationship and to put a quietus to all litigations between the parties and not to leave any room for future litigation, so that they may live peacefully hereafter…”
In the case of Naveen Kohli vs. Neelu Kohli (AIR 2006 SC 1675), the Hon'ble Supreme Court recommended to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for divorce. The essence of the above case was large number of criminal cases were pending against each other. So in essence if either party initiates criminal cases against each other then it should be considered an ground for divorce.
If the current law comes into being in the present format, this will lead to the wife walking out with the divorce while the husband will still be stuck in a legal tangle of cases for many decades. I demand that an amendment will be inserted that decree of divorce be granted only when all litigation including but not limited to child custody between the husband and the wife has been resolved to the satisfaction of either of the parties, with the post condition that no party will initiate any other litigation against each other once the divorce decree has been granted.
Posted by menseekjustice at 10:23 PM
Monday, April 29, 2013
"When severe injustice becomes law,defying it becomes a duty"
It appears that government is not satisfied with the undue concessions made to women in its 8 years of corruption and scandal ridden poor governance. From the DV act of 2005 which considered Domestic violence as an crime only when committed against a woman and exempted women from getting punished for committing the same offence against men to the current day the government has one after another churned more and more senseless pieces of legislation which defy any logic and corners innocent husband and takes away their right a peaceful existence. Not withstanding the soaring misuse rate 498a and DV act quoted as high as 98% of cases being false, the government is on track to introduce the most dangerous anti male legislation of in its 8 year tenure.
The Last Nail in the Coffin?
The latest and perhaps the most dangerous of all legislations kept for the end is the innocently titled "Irretrievable Breakdown of Marriage Act", which promises to dissolve a marriage which has irretrievably broken. However instead doing justice to both divorcing parties the government has incentivized divorce to such an extent for women that they will stand to gain far more in a divorce than by staying in a marriage. The cost of the complete financial windfall that a woman stands to receive will be burdened on the husband who will be reduced to a bankrupt wreck losing half of everything that he earned , acquired or inherited from his ancestors before and during the marriage. Shockingly the wife will not be required to part with any of her earnings , ancestral or otherwise whatsoever. Only the husband will be fully and completely bled to finance the entire divorce and the entire financial settlement.
Only in India women can marry today and take half of EVERYTHING tomorrow !!
1. Only a wife will the right to oppose a divorce petition . Should a wife choose to file for divorce the husband will have no right to even oppose the petition and save his marriage. Husbands who are poor , weak , ill and have simply fallen out of love will have no legal provision to save their marriages or demand a financial settlement from a financially stronger wife.
2. In the financial settlement , the wives will retain all her wealth , income , jewellery and ancestral property that she has inherited. However the government will annex 50% of the husband's movable and immovable assets acquired both BEFORE and DURING the marriage.Not only that , he will also have to part with 50% of his ancestral property or pay extra money to the wife in lieu of the same. While the wife would move on after receiving this financial windfall , the husband would also have to continue to fight 3 to 4 false criminal cases for years like 498a , DV and in the process lose whatever he has left after the property partition. Can it get more worse and biased than this?
Share only the credit not the debt
To elucidate with an example ,if a graduate man gets divorced at age 32 , then whatever movable and immovable property he has acquired since he started to work in his early 20's will be split evenly even though his wife had no contributions in acquiring those assets in any way.This would include his immovable property like real estate and movable property like bank savings accounts, fixed deposits, shares , mutual funds acquired household articles like TV , fridge , Motorcycle , Car and furniture. If the husband has bought a property with a loan then the wife would not be burdened with the debt of the husband. The wife's share would limited only to the credit and assets of the husband and not his debt. The Govt and legal system would also annex the ancestral parcel of property that the man is likely to receive from his father , mother or grandparents.
The wife however would retain EVERYTHING that she has saved or acquired before and during the marriage. She would also retain all her ancestral property that she would inherit from her paternal or maternal family.
Reducing Indian husbands second class citizens
Indian husbands , especially Hindu husbands it appears have been stripped of their basis right of being property owners in a democratic country thereby reducing them to second class citizens. The state and law now want to annex the property of Hindu men on completely frivolous grounds. Indians have always been very extremely possessive and protective of their property and the Mahabharata war could have been averted if the Kauravas given a property of just 5 villages to the Pandavas. Even today most murders and violent incidents are in some way related to property disputes. In the event that a Hindu man stands to lose half of everything that he has every earned both before and after marriage along with share of his ancestral property to an undeserving and vengeful woman who hates him and in a marriage that has lasted just a few months, one cannot but shudder to contemplate the violent outcomes that such scenarios would have on the man , his wife and his family members.
Complete loss of faith in Indian court systems
An outlaw is created when injustice becomes law.Why would one even go to the court, or for that matter listen to the courts if the role of the court would be to simply annex all that a man has earned or stands to inherit .The Indian Judiciary system is today nothing more than a façade of justice for a Indian husband thanks to the non-existence of a single law that can protect a man from an abusive and violent marriage.This fledgling judiciary and court system in the future would lose complete relevance and few if any husbands would approach or honour the courts which essentially would be reduced to a property transfer bureau where the hard earned movable and immovable property of a husband would be brutally annexed from him , partitioned and given to an undeserving wife, who by the way would get to keep all her own earnings and property intact.
The outcome of such nonsense laws would only lead to more violence , murders and social unrest. Divorce rates will reach 70% and marriage rates would plummet to single digits. People would prefer a few days in prison than giving away everything they have ever owned The Govt and feminists already responsible for the deaths and suicides of thousands of innocent husbands, will be additionally responsible for the ensuing explosion of violence and deaths that would follow with the enactment of such senseless laws.
Posted by menseekjustice at 11:42 PM
Wednesday, March 6, 2013
Women in India have enjoyed the protection of their male counterparts from times immemorial. Men in India are expected to give their lives to protect their sisters, daughters , wives and also unknown women . Hardly any woman has died fighting for the country. Only in this one area men have been allowed the exclusive privilege for dying in the name of protecting women , society and motherland even as women have lobbied for reservations in more secure and comfortable positions in government and the private sector. Not only are women in India protected by men they have been provided unconstitutional immunity of prosecution from many heinous crimes. Crimes of Domestic Violence, Spousal abuse, Sexual harassment and Rape. Even though the data shows that over 65000 husbands are driven to suicide due to spousal abuse annually the government has so far not created a single gender law to safeguard the rights of men in gender crimes. As a result of this not only do women commit these offences with complete disdain they in turn accuse the male partner of that offence immediately thereafter. Consequently we see widespread misuse of IPC 498a , Rape and the DV act and not a single women has even been punished for misusing these laws against her husband/boyfriend. Rape of Males and boys is a still a taboo subject owing the protector and provider roles that males are expected to don for women. Archaic laws, feminist media and pressure from women’s rights groups do not even allow a woman to be accused of Rape. As a consequence very news of Indian female sex offenders or female abusers ever comes out in the public domain.
Democratic Law making process in the Sexual Assault billLately the Government after looking at the changing dynamics of sexual orientation of the Indian citizenry decided to make the Rape a Gender neutral offence so that men also could be accorded protection from female sex offenders. The Legal luminaries of the Law commission of India after a lot deliberation and studying the changing sexual dynamics and sexual orientation of the Indians in its one Hundred and Seventy Second Report on Review of Rape Laws make a very progressive recommendation that the Rape be made a gender neutral offence. The same legislation was then passed on a eminent parliamentary committee chaired by a the Honorable Shri Venkaiah Naidu from the BJP. The Committee considered the Bill in eight sittings held on 4th, 21st, 28th January, 4th, 11th, 18th , 21st and 26th February, 2013. The Chairman in the Committee's sitting held on 4th January, 2013 apprised the Committee about the reference of the Criminal Law (Amendment) Bill, 2012 and the Committee decided to issue a Press Release soliciting views of the individuals/organizations, women organizations on various provisions of the Bill. The Committee also decided to obtain the views of the State Governments/UT Administrations on the Bill. In response to the Press Release (Annexure-II) issued, the Committee received 492 memoranda out of which 402 memoranda signed by individuals were found to be identical. The extensive and exhaustive review of the committee can only be understood when one goes through their report entire report. After such an exhaustive exercise the committee recommended that men and boys are equally prevalent to rape and sexual assault and hence the crime is a gender neutral crime.
Derailing the democratic law making process by a handful women’s groups and female hooligans
Over the years India has witnessed the increasing opposition from a very small minority of women’s rights organizations against granting protection to men from crimes committed by women in gender relationships. Neither are this elected representative and neither do they have the people’s mandate to make laws. They however resort to female hooliganism on streets when needed. Crimes like Domestic violence, Intimate terror and Rape are offenses which have been proved to have been committed by women on innumerable occasions and are recognized offences in the west. However in India these women’s organizations wage a ferocious war to deny men any protection from these heinous offences. The suggestions provided by the handful of aggressive women’s groups in all laws clearly include statutory language by addressing the accused as a universal, “HIM” and the complainant as a universal, “SHE”. This is nothing less than a CRIME AGAINST HUMANITY. In the sexual assault case these handful of nondescript and unimportant women’s groups are now waging a war not to accord equal rights to men. The government instead of strongly condemning such short sighted and narrow minded approach to law making and the blacklisting of such organizations in most cases chooses to fold and reverse the entire law making process under pressure from such groups. In this case the under pressure from these women’s groups the lameduck UPA2 chose to change the whole definition of rape from a gender neutral offence to an older regressive gender biased offence making the man has the universal accused at the very last moment against the recommendations of the Law Commission and the Venkaiah Naidu committee.
Please stop the law making Tamsaha !!
If ultimately the feminists are to prevail what is the need for democratic institutions like the law commission of India and the need to create committees to study the opinion of the citizenry. The govt can as well make the head the feminist groups the law maker of the nation and stop all this eye wash of democratic law making that it plays every time. The present situation leads to extreme suspicion that these groups have incriminating material with them by which they blackmail the entire government into submission thereby derailing the entire democratic law making process.
The prevalence of Female Sex Offenders
Rarely a day do goes by when we do not hear of a female teacher bring arrested for criminally chargeable sexual conduct with her teenage male students. Rapes of drunk or unconscious males by individual women or gang of women is also very commonly reported in the west. Female sex offenders are increasing at a very rapid rate in the west and some studies count them as high as close to 50% of the total volume of sex offenders.
The United States Department of Justice which found a rate of 8.3% for “Other sexual offenses” for females and The Australia Bureau of Statistics found a rate of 7.9% for “Sexual assault and related offences” for females.
In a study of 17,337 survivors of childhood sexual abuse, 23% had a female-only perpetrator and 22% had both male and female perpetrators..
The National center for child abuse and neglect in the US states that the sexual abuse of children by women, primarily constituted 25% (approximately 36 000 children) of the sexually abused victims. This statistic is thought to be underestimated due to the tendency of non-disclosure by victims.
According to a major 2004 study commissioned by the U.S. Department of Education - In studies that ask students about offenders, sex differences are less than in adult reports. The 2000 AAUW data indicate that 42.4 percent of all students report a female offender .
Some have even suggested as many as 63% of sex abusers may be female. (Source: Schwartz, B. K., & Cellini, S. R. (1995). Female sex offenders. 
According to a 2011 US Center for Disease Control report there are an estimated 4,403,010 female victims of sexual violence that had a female only perpetrator. (Source: The National Intimate Partner and Sexual Violence Survey) 
Sadly in India archaic laws, feminist media and pressure from women’s rights groups do not even allow a woman to be accused of Rape. As a consequence little very news of Indian female sex offenders comes out in the public domain.
Rape and Sexual Assault of Males is a recognized crime in the west already
Britain has already made Sexual Assault law Gender Neutral way back in 2003. The “Stern Review” published by the Government Equality Office in 2003 was a landmark study of Sexual Assault in the United Kingdom. It greatly widened the scope of sexual assault and also broke many perpetual myths around rape till date. The Stern review also dedicated a separate section for calling out the rising offence of rape against men. Below we quote some landmark observations of the Stern Review.
a. “Women , Men and Children and people of all ages and all social groups can be rape victims”
b. “Around eight per cent of recorded rape cases are rape of a man. Men find it very difficult to talk about what has happened to them because of the common view that a man should be able to fight off an attacker.”
c. “The Metropolitan Police Service has a leaflet on its website for male rape victims which set out the problems that men reporting rape can face. We welcome this initiative, which should give more men the confidence to report what has happened to them to the police.”
Male victims of sexual assault – information on a hidden crime
Is it different for a man?
Since 1994 the law has recognised the rape of men as a criminal offence. There is much myth around the sexual assault of men, which leads to many misunderstandings about the crime and the victims it affects. This has consequences in the way that men see themselves as victims of sexual crimes, and stops them from talking about what has happened to them and getting help.
Men experience similar feelings to women, such as shame, self blame and guilt. They may have extra issues to deal with, due to society’s belief that men should be able to protect themselves.
Rape is defined in the law of England and Wales. The law on rape was revised in 2003 after a long consultation process and the new Sexual Offences Act came into force on 1 May 2004. The Sexual Offences Act 2003 (the Act) says that rape occurs when someone ‘intentionally penetrates the vagina, anus or mouth of another person with his penis’, that the other person does not consent to the penetration, and the perpetrator ‘does not reasonably believe that the other person consents’.
False Rape claims and the Outrageous Indian logic of “Sex with promise of marriage amounts to Rape”
Epidemic of false rapes is not an India centric problem. Owing to the epidemic of false cases reported in the UK the Stern report also dedicated a separate chapter to the issue of false allegations of Rapes. The British Court of Appeal said that false allegations damage conviction rates of genuine rapes and are ‘terrifying’ for innocent victims. The penalties for making false allegations and persisting with them through the legal process in the UK can be commensurately severe. A complainant making false allegations is normally given a substantial prison sentence.
One outrageous and one of the most frequently cited reason of Rape in India are incidents where consensual sexual intercourse between two willing partners suddenly becomes rape, much later due to a fall out in the relationship and breakdown in marriage. In the 21st century where the gender orientations of young people are getting liberalized, this antiquated logic is still upheld by many courts and leads to a flurry of false rape cases when the jittered female partners file rape cases to get even with male partners. The Pune Police women’s cell in a 2010 survey of all rape cases in the city concluded that in 74 per cent of rapes since 2008 were actually consensual sex based on false promises of marriage.
In the few weeks after the violent incidents in which a woman and her boyfriend were brutalized in a bus and the mob fury that followed, even the police were alarmed at the ferocious increase in the number false rapes that were filed by women taking advantage of the sentiment of the nation. Below are just a few news excerpts from those few weeks of the Delhi aftermath
- Times of India 4/1/2013: “90% of rape cases in Kishanganj false: SP” 
- Daily Pioneer 03/01/2013: “10 false rape cases in a week reported”
- Indian Express 05/01/2013:” Moga police takes action against woman who registered false rape case” 
- Hindustan Times 31/01/2013: “Experts caution against rise in false cases”
- Punjab News Line 02/1/2013: “Police cautioned against hasty action on false sexual harassment complaints”
With such overwhelming evidence it cannot be denied that the overwhelming majority of rape cases pending in courts are either false or consensual sex converted to rape. The problem with entertaining rape cases with such outrageous and frivolous grounds is that is puts an enormous pressure on the overloaded and poorly equipped investigating machinery and most importantly moves scarce resources away from the genuine cases, which needs attention. Such misuse of gender allegations has also been observed in 498a and DV act the misuse of which was referred to as “Legal Terrorism” by the Hon Supreme Court.
Influence of print and electronic media into sexual assault cases must be strictly regulated
The so called “self-regulating” Indian media has been repeatedly warned by the honorable courts not act as judge jury and executioner in subjudice and sensitive gender cases. The Media however has have ignored all requests from various government agencies and have destroyed the reputation of many falsely accused in their relentless hounding of the accused and calling them demons, monsters , and other names in the open press and electronic media. The media also irresponsibly demands death sentences, castration and other ghastly medieval punishments knowing very well that there is no provision of these in the law. Irresponsible media coverage stokes people’s sentiments and leads to rioting, destruction of public property and death of innocent police personnel. Media picks and chooses its victims carefully according to their stature in the society and typically politicians, bureaucrats and rich individuals are their first targets. Reporting is done based on TRP’s and not on the merits of the case. Many times the Indian media works in collusion with women’s rights organizations to extract a hefty settlement from the accused to drop the charges and then terminate negative coverage. After the case is proved false the reporting of the case is subdued to a great extent but by then the damage to the falsely accused is irreparable and lifelong. With close to 70 to 90% of rape cases being false media regulation in sexual assault cases must be baked into the text of the law itself to preserve the sanctity of the falsely accused.
The past few years have witnessed on many occasions a very disturbing trend in India where knee jerk draconian solutions are forcefully demanded especially in gender issues at the behest of a handful of aggressive women’s rights groups, which normally cause unspeakable pain and suffering to the accused while leaving the main problem completely unsolved. It is necessary to once again remind the government that while sexual assault is a crime like no other, a false accusation of sexual assault is also no less than imposing a death sentence on a person for life. Indians can only hope that the Indian Govt comes to its senses and makes changes which are gender neutral (applicable to both genders), balanced, unbiased, and most importantly do not prejudice any rights available under the Protection of Human Rights Act, 1993.
 In B. K. Schwartz & S. R. Cellini, (Eds.), The sex offender: Corrections, treatment, and legal practice (5-22). Kingston, NJ: Civic Research Institute)
Posted by menseekjustice at 9:33 PM