“Rape is highly reprehensible, both in a moral sense and in is almost total contempt for the person integrity and autonomy of female victim and for the latter’s privilege of choosing those with whom intimate relations are to be established”
Byron R. White J., the Supreme Court , United States of America
Women the most beautiful creation of god, in India people even worship girls made reservation to give them equal status but does women get equal treatment? Are they really treated equally?
A story of Bandit Queen depicting the scenario of male dominant society of India. Initially not a dacoit but a simple village girl who got exposed to the unrivaled truth of the Indian society, Phoolan Devi started her journey to become the Bandit Queen. She was married to a man double of her age. She was beaten and rape by him. Later she was thrown out of the village-accused of luring boys of the upper caste. She was arrested by the police and subjected to indignation and humiliation. Was also kidnapped and raped by the leader of dacoits and later by the leader of a gang of Thakurs- who striped her naked and paraded her in front of the entire village. This is truly one story that shows the apathy of the existing society.
In the present article the author is going to discuss about the statutory definition about the rape and its interpretation, few judgments which are going to help in understanding the law in practice. The author is also going to discuss about the social obstacles in dealing with such a sensitive issue.
Rape in dictionary defines as the crime of forcing a woman to submit to sexual intercourse against her will. In India, rape is defined in the following manner;
“a man is said to commit ‘rape’ who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
A. Against her will.
B. Without her consent.
C. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
D. With her consent, when the man knows that is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
E. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
F. With or without her consent, when she is under sixteen year of age.”
The only exception to this rule is that sexual intercourse by a man with his wife, the wife not being under fifteen years of age. From the above provided definition, it is clear that under which circumstances a sexual intercourse will amount to rape. The essential ingredients of the offence of rape:
1. There must be a sexual intercourse with a woman by a man
2. Such a sexual intercourse should be done under any of the above circumstance
Sexual intercourse means penetration of male organ into that of female. To explain Section 375, the Supreme Court through its various judgments made it clear that even slightest or partial penetration of the male organ within the labia majora or the vulva or pudenda is sufficient to constitute ‘sexual intercourse’ . The court in other cases also said that the depth of penetration is immaterial . The slightest degree of penetration is enough . Penetration, not ejaculation, is the sine non qua for the offence of rape . Therefore to prove that a rape is committed it is not necessary to prove completion of sexual intercourse by the emission of seed. Even the partial penetration is enough to attract section 375.
Judicial approach towards ‘rape’
The famous Mathura rape case , which led to the amendment of the law. The Criminal Law Amendment Act, 1983 has made a statutory provision in the face of Section.114 (A) of the Evidence Act, which states that if the victim says that she did not consent to the sexual intercourse, the Court shall presume that she did not consent. The amendment was required because of the judgment given by the courts in this case. In this case Mathura a sixteen year old girl was raped by two policemen in the compound of Desai Ganj Police station in Chandrapur district of Maharashtra. When case came for hearing in the session’s court the court found the defendants not guilty. It was stated that because Mathura was ‘habituated to sexual intercourse,’ her consent was voluntary; under the circumstances only sexual intercourse could be proved and not rape. On appeal the Nagpur bench of the Bombay High Court set aside the judgment of the Sessions Court, and sentenced the accused to one and five years imprisonment respectively. The Court held that passive submission due to fear induced by serious threats could not be construed as consent or willing sexual intercourse.
However, the Supreme Court of India again acquitted the accused policemen. The Supreme Court held that Mathura had raised no alarm; and also that there were no visible marks of injury on her person thereby suggesting no struggle and therefore no rape. In Mohd. Habib v. State , the Delhi High Court acquitted a man who raped a seven year old girl, asserting that there were no marks of injury on his penis. The Court refused to take cognizance of the bite marks on the victim’s person and the fact that she suffered a ruptured hymen on account of the sexual assault. Another classic example of the judicial pronouncements in rape cases is the case of Bhanwari Devi , wherein a judge remarked that the victim could not have been raped since she was a dalit while the accused hailed from an upper caste- who would not stoop to sexual relations with a dalit.
In yet another instance of conscience stirring case of Sakina , Sakina- a poor sixteen year old girl from Kerala, who was lured to Ernakulam with the promise of finding her a good job, where she was sold and forced into prostitution. There for eighteen long months she was held captive and raped by clients. Finally she was rescued by the police- acting on a complaint filed by her neighbour. With the help of her parents and an Advocate, Sakina filed a suit in the High Court- giving the names of the upper echelons of the bureaucracy and society of Kerala.
The suit was squashed by the High Court, while observing that it is improbable to believe that a man who desired sex on payment would go to a reluctant woman; and that the version of the victim was not so sacrosanct as to be taken for granted.
Whereas, in State of Punjab Vs. Gurmit Singh , the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character. The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar , opined
“…the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard.”
Victim remains victim
In the present society where the offences against women are on the rise- when young girls are raped by their doctors, by their close relatives, by presidential guards in broad daylight, the definition of rape need to be wider. Present law does not even recognise marital rape which is increasing in the society. If there is forced penetration of objects and parts of the body into the vagina and anus; and forced oral or anal intercourse than that is not considered as rape.
Adding to this, Section 155(4) of the Evidence Act, which indirectly helps the defence side to make the victim weaker by asking her about past sexual history of her life. In most of the rape cases victim does not have justice because of the poor quality of investigations. The reason behind this is gender bias society and corrupt police officer who even refuse to lodge the FIR against rich and powerful persons of society. The manner in which some courts have interpreted the law or assessed the evidence has often proved to be an obstacle also. Inspite of Supreme Court judgments to the contrary, lower court judges often insist on evidence of physical resistance or marks of injuries to hold that a woman has not consented. A woman’s evidence without corroboration is not considered sufficient. The long time that is taken to complete a rape trial often by allowing senseless adjournments; and the giving of evidence by the victim in the presence of the accused and the harsh cross examination in the Court are some other major obstacles.
As observed by Justice Saghir Ahmad, “Unfortunately a woman in our country belongs to a class or group of society who are in an disadvantaged position on account of several social barriers and impediments and have therefore, been victims of tyranny at the hands of men with whom they, unfortunately, under the Constitution enjoy equal status.”
After studding the various judgment and laws related to the rape the author came to the conclusion that there is a need to bring change in the courts and legislature. The punishment that is mention in IPC, which normally ranges from one to ten year of rigorous imprisonment with very small fine is not sufficient to stop the increasing crime of rape. If the accused is powerful or rich the case is not even filed against them by the police, if filed then also they get no punishment by paying huge amount of money. The court also need to concentrate on the fact that in some cases the victim is beaten and tortured so badly that they even loss their mental balance. Even the small children who do not even know the meaning of rape are facing this problem. Therefore, in the best interest of society, these criminals should be sentenced to life imprisonment. However, if they truly have realized their mistake and wish to return to society, the Court and jail authorities may leave such men on parole; but only after they have served a minimum of half the sentence imposed on them.
It is clear that sexual offences are increasing day by day, but if death sentence is given to such convicts then no doubt that the graph of rape cases will come down. Studying the laws, the process, the application of the laws, has made one thing very clear that the entire structure of justice needs an over haul, otherwise the victim shall no longer the woman, but HUMANITY.