RIK is a community, committed to sharing of information and awareness to make kink, BDSM and alternative lifestyle a pleasant and hassle-free experience. In this direction, we have started a new column this issue onwards. In 'So Speaketh The Lawyer' we have our on-panel layer Joywillingly, answering any legal queries our members might have.
Query 1 - How much of what we do here (talk/post pics/spread information etc etc) is really against the law? i know its quite a vast topic, but phir bhi, how many laws (if any) have we broken by just creating a profile on an adult site like fetlife?
An Inquisitive Sub
JoyWillingly : Dear Inquisitive Sub,
There is no law in India which prohibits BDSM activities. I guess the law makers, till date, have not realised that such activities at all are in existance in India! The laws which come close to dealing with anything sexual or in the language of the law, which is "lascivious or appeal to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it" are sections 292/293/294 of the Indian Penal Code (IPC) and Section 67 of the Information Technology Act (ITA).
However, there are exceptions to the rule. The aforesaid act shall not be an offence if can be proved to have been done for the "interest of science, literature, art of learning or other objects of general concern, or is kept or used bona fide for religious purposes."
Creating a profile in FL by itself is not an offence as long as your profile does not contain informations/words/pictures/photographs which are "obscene". "Please spank me" might not be obscene but pics/photos of bare bum/breasts/ genetelia are.
Query 2 - I know of instances where the fact that Ms. A had an online adult profile on a social networking site (orkut/facebook/fetlife) and had adult content emails in her mailbox was used against her by Mr. B in divorce lawsuits to establish a sexually promiscuous personality. Access to such profiles/emails was by hacking her password. so this is what worries me. is such evidence of bad character permissible/considered/valid in courts? and ofcourse how does one protect oneself against such blackmail/ill use? ( just wanted to clarify, my example is of a woman being harassed by a man, but i know of one instance whr it has worked the other way around too. so i dont intend any focus on the gender of the persons involved. )
Sincerely,
A Cautious Kinkster
JoyWillingly : Dear Cautious Kinkster,
Having an adult profile online proves NOTHING. First, how does the prosecuting party prove that such profile belongs to the partner and has not been maliciously created by the prosecuting spouse for ulterior gains? Secondly, under the law, Adultry is a ground for divorce but the same has to be proved by the person claiming divorce. Under criminal law only a man who has sexual intercourse with a married woman can be prosecuted for adultry and not the married woman even if she is the abbetor. By definition adultry means penetrative sexual intercourse. Cyber sex is not an act of coitous. Having an adult profile in any social networking site other than FL might be an offence under Section 67of ITA cause the same is accesable to public at large but the same can not be true for a profile in FL. Anyone signing up for FL knows what to expect therein.
It is pertinent to mention herein, that the spouse who hacked the partners alleged adult profile could be prosecuted for the offence of hacking under the ITA. We need to remember however that the judges are human too and the interpretation of the law varies from person to person depending on their understanding of morality and their unseen roots of patriarchy. This is why we need to educate and spread awareness amongst all.
Query 1 - How much of what we do here (talk/post pics/spread information etc etc) is really against the law? i know its quite a vast topic, but phir bhi, how many laws (if any) have we broken by just creating a profile on an adult site like fetlife?
An Inquisitive Sub
JoyWillingly : Dear Inquisitive Sub,
There is no law in India which prohibits BDSM activities. I guess the law makers, till date, have not realised that such activities at all are in existance in India! The laws which come close to dealing with anything sexual or in the language of the law, which is "lascivious or appeal to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it" are sections 292/293/294 of the Indian Penal Code (IPC) and Section 67 of the Information Technology Act (ITA).
However, there are exceptions to the rule. The aforesaid act shall not be an offence if can be proved to have been done for the "interest of science, literature, art of learning or other objects of general concern, or is kept or used bona fide for religious purposes."
Creating a profile in FL by itself is not an offence as long as your profile does not contain informations/words/pictures/photographs which are "obscene". "Please spank me" might not be obscene but pics/photos of bare bum/breasts/ genetelia are.
Query 2 - I know of instances where the fact that Ms. A had an online adult profile on a social networking site (orkut/facebook/fetlife) and had adult content emails in her mailbox was used against her by Mr. B in divorce lawsuits to establish a sexually promiscuous personality. Access to such profiles/emails was by hacking her password. so this is what worries me. is such evidence of bad character permissible/considered/valid in courts? and ofcourse how does one protect oneself against such blackmail/ill use? ( just wanted to clarify, my example is of a woman being harassed by a man, but i know of one instance whr it has worked the other way around too. so i dont intend any focus on the gender of the persons involved. )
Sincerely,
A Cautious Kinkster
JoyWillingly : Dear Cautious Kinkster,
Having an adult profile online proves NOTHING. First, how does the prosecuting party prove that such profile belongs to the partner and has not been maliciously created by the prosecuting spouse for ulterior gains? Secondly, under the law, Adultry is a ground for divorce but the same has to be proved by the person claiming divorce. Under criminal law only a man who has sexual intercourse with a married woman can be prosecuted for adultry and not the married woman even if she is the abbetor. By definition adultry means penetrative sexual intercourse. Cyber sex is not an act of coitous. Having an adult profile in any social networking site other than FL might be an offence under Section 67of ITA cause the same is accesable to public at large but the same can not be true for a profile in FL. Anyone signing up for FL knows what to expect therein.
It is pertinent to mention herein, that the spouse who hacked the partners alleged adult profile could be prosecuted for the offence of hacking under the ITA. We need to remember however that the judges are human too and the interpretation of the law varies from person to person depending on their understanding of morality and their unseen roots of patriarchy. This is why we need to educate and spread awareness amongst all.
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