The article has been written by Mr. Rajdeep Hembram, a 1st year LLM student from University Law College, Hazaribagh, Jharkhand
Introduction
The patriarchal nature of the society, violence against women, and stereotyped behaviour are age old concepts that have troubled the society since time immemorial. It is a barbaric act that has persisted in our society since time immemorial. The term ‘rape’ has been derived from the Latin word ‘rapio’, meaning ‘to seize’.
For decades custodial violence has been a significant hindrance to democracy and the development of human well-being. It is also a huge human rights issue in India. Rape could be categorized as one of the most horrific crimes perpetrated by humankind against itself.
Section 376 of the Indian Penal Code covers “Sexual intercourse by a person in authority.
Custodial rape is a type of rape that occurs when the victim is “in custody” and unable to leave, and the rapist or rapists are agents of the power keeping the victim in custody. The Supreme Court in the case of Omkar Prasad Verma v. State of Madhya Pradesh defined “custody” as guardianship.
The Mathura rape case was an incident of Custodial rape in India on 26 March 1972, wherein Mathura, a young tribal girl, was allegedly raped by two policemen on the compound of DESAIGANJ Police Station in GANDCHIROLI district of Maharashtra. After the Supreme Court acquitted the accused, there was public outcry and protests, which eventually led to amendments in the Indian rape law via The criminal law amendment act 1983.
The case named Tukaram & Anr. v State of Maharashtra was a landmark case. The incident took place in 1972, Chandrapur district of Maharashtra which shook the nation. The decision was given by the Supreme Court was something that caused outrage within the nation. Several protests were organized by many activists such as Vasudha Dhagamwar (who submitted an open letter to the Chief Justice of India about this matter) and Upendra Baxi Raghunath Kelkar Lotika Sarkar)against the decision. Also it led to further introspection and lead to review of rape laws in India and the definition of consent was redefined.
Facts of the case
Mathura, a sixteen-year-old girl, who was an orphan who worked as a house help at the Nushi’s place. She was in love with Ashok, Nushi’s nephew. Also she developed sexual relations with him. She wanted to marry him, to which his brother objected. As a consequence of which he filed a kidnapping case against Ashok and Nushsi’s husband. The head Constable Baburao recorded the statement. Ashok as well his family was brought to Police Station. Approximately around 10:30 AM, everyone was heading out of police Stations post recording of their statements.
The accused Ganpat asked Mathura to stay while everyone was leaving the station. The accused turned the lights off, shut the door and allegedly raped her after asking to disrobe herself, thus outraging the modesty. After he was done, another accused Tukaram, who was heavily intoxicated, could not rape, but fondled with her private parts.
Mathura told her family and friends about the incident. Her hymen exhibited previous ruptures, but she had no other injuries on her body, according to the medical examination. She was between the ages of 14 and 16, and her hymen revealed old ruptures.
Issues
The Issue before the court was whether there was any activity of rape was committed by the accused?
Session judge decision
The Sessions Judge found that there was no satisfactory evidence to prove that Mathura was below 16 years of age on the date of occurrence. He held that Mathura was “a shocking liar” whose testimony “is riddled with falsehood and improbabilities”. The Court came to the conclusion that she had sexual intercourse while at the police station but rape had not been proved and that she was habituated to sexual intercourse, but finding that Nunshi and Ashok would get angry with her, she had to sound virtuous before them. she would have surrendered her body to the Constable. The District Judge, therefore, acquitted the appellants.
Bombay High court decision
The High Court found that the sexual intercourse was forcible and amounted to rape. Since both the accused were strangers to Mathura, it was highly improbable that Mathura would make any overtures or invite the accused to satisfy her sexual desire. It is possible that a girl who was involved in a complaint filed by her brother would make such overtures or advances. However the initiative must have come from the accused and if such initiative came from the accused, she could not have resisted the same. About appellant Tuka Ram, the Court believed that he had not made any attempt to rape the girl but took her word for granted insofar as he was alleged to have fondled her private parts after the act of sexual intercourse by Ganpat appellant.
The High Court reversed the order of acquittal and convicted accused.
Supreme court decision
In 1979, the Supreme Court overturned the conviction of the High Court and acquitted the accused. The Supreme Court agreed with the Sessions Judge that this was a case of consensual sexual intercourse. On this point the Supreme Court further added that since “no marks of injury” were found on Mathura’s body there was “no resistance” on her part and since she did not “raise an alarm” for help she “consented to sex.”
The court also added that no direct evidence being available about the nature of the consent of the girl to the alleged act of sexual intercourse, the same had to be inferred from the available circumstances and that from those circumstances it could not be deduced that the girl had been subjected to or was under any fear or compulsion such as would justify an inference of any “passive submission”, and this contention appears to us to be well based. The court also took the findings on the basis of ‘the two-finger test’ into consideration, which highly demeaning to the rape survivor.
The Supreme Court acquitted both the accused stating that this alleged intercourse was a “peaceful affair”.
Aftermath
A number of women’s group were formed as a direct response to the judgment, including Saheli in Delhi, and prior to that in January 1980, Lotika Sarkar, was also involved in the formation of the first feminist group in India against rape, “Forum Against Rape”, later renamed “Forum against oppression women” (FAOW). A national conference was organised by FAOW which started the debate for legal reforms. Issues of Violence against women and the difficulty of seeking judicial help in sexual crimes was highlighted by the women’s movement
The criminal law amendment act 1983 made a statutory provision in the face of Section 114 (A) of the Evidence Act made 25 December 1983, 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 as a Rebuttable presumption new laws were also enacted following the incident. The Section 376 (punishment for rape) of the Indian penal code underwent a change with the enactment and addition of Section 376(A), Section 376(B), Section 376(C), Section 376(D), which made custodial rape punishable.] Besides defining custodial rape, the amendment shifted the burden of proof from the accuser to the accused once intercourse was established; it also added provisions for in-camera trials, the prohibition on the victim identity disclosure, and tougher sentences.
conclusion
India’s rape laws have been revised over time, the number of rape cases continues to rise year after year. This act not only causes significant bodily harm to the victim, but it also has catastrophic psychological consequences such as PTSD, depression, flashbacks, sleep difficulties, and more. Improving the protection and security of women in the state would be one step toward eliminating this crime. More than strict rules to punish wrongdoers, men’s attitudes and mentalities. Through this case custodial rape was come in picture and also the sexist ideology of the society as well as judiciary.
References
Case
https://en.wikipedia.org/wiki/Mathura_rape_case
Tuka Ram And Anr vs State Of Maharashtra on 15 September, 1978
https://indiankanoon.org/doc/1092711/
case law
https://main.sci.gov.in/jonew/judis/4992.pdf
news
https://edition.cnn.com/interactive/2013/11/world/india-rape/