Author: Divi Bhargavi Student, Presidency University, Bengaluru
Rape is a punishable offence. Section 375 of Indian Penal Code[i] defines what rape. According to the section rape is a ‘Non-consensual sexual act committed by a man against a woman without her will’. The following are the circumstances under which a sexual intercourse or act or conduct is classified as rape.
The act is done against the will of the female
The act is done without the consent of the female
With consent, where the consent is taken by putting her or a person in whom she interested in instant fear of death or injury
With the consent, where the man knows that he is not the persons who is lawfully married to the woman.
With consent, where the consent is obtained by a female who is of unsound mind or intoxicated, where she is unable to judge the consequences of the act.
With or without the consent of a female who is under 18 years of age.
When a female is unable to communicate her consent.
Medical interventions or procedures, sexual conduct by a man with his wife, the wife not being under 18 years of age shall not constitute as rape. The exceptions mentioned are controversial and debated. India had witnessed many rapes since the commencement and implication of Indian Penal Code 1860. Nirbhaya rape case is known as a horrifying rape to modern India. But case of Tukaram & Anr v. State of Maharashtra[ii], famously known as Mathura rape case has a history of 50 years. This case has led to many changes in the sphere of rape under India Penal Code. This case is considered to be the most erroneous judgments in the history of Indian judiciary.
FACTS OF THE CASE
Mathura was a young orphan girl living with her brother, Gama. For their livelihood, she worked as a maid at the house of Nushi. Over time, she developed feelings for Ashok, who is Nushi’s nephew, and maintained a sexual relationship with him. Both of them decided to get married. Gama filed a report on 26th March 1972. The report says that, Mathura had been kidnapped by Ashok. After the registering the report, concerning parties Nushi, Ashok and other relatives were called to the police station for enquiry. After recording their statements, everyone started walking out. While they were leaving, at around 10:30 pm, Constable Ganpat asked Mathura to stay back. He accompanied her to the washroom and started looking at her private parts using a torch. He tried to outrage her modesty and sexually assaulted her. Later, he took her behind the police station and raped her. After he was done raping her, his colleague was next in the line. He tried to rape her but he could not as he was heavily intoxicated. He fondled her private parts as he couldn’t rape her. Upon reuniting with her family, Mathura narrated everything that happened with her in the premises of the police station to everyone present there.
Head constable, Baburao, was then called to the police station to record the statement of the victim. She was initially medically examined by Dr. Khume. Dr. Khume and Dr. Shastrakar advised to file and FIR against the two police officers. Dr. Shastrakar did not find any injuries on the body of Mathura, nor any evidence of intercourse. Traces of semen was found on the clothes of Mathura and Ganpat. However, it was identified that the victim’s vagina had old ruptures. He also stated that in the report that the victim’s vagina could be penetrated with two fingers with no inconvenience and that there was no matting of public hair.
ISSUES FRAMED ARE:
Whether the minor girl, Mathura consented to the act?
Whether the appellants are liable for punishment under section 376 of Indian Penal Code[iii]?
Whether act committed by police officers amount to rape according to section 375 of Indian Penal Code[iv]?
Whether Tukaram is guilty of the offence sexual harassment under section 354 of Indian Penal code[v]?
The Sessions court found the act to be a consensual sexual intercourse. The judge held that the act is not punishable and acquitted the alleged accusers. The rationale behind his judgment is that, as old ruptures were found near her vagina she might be a person who is habituated to sex. The judge also opined using the above logic that Mathura might have incited police officers. In the opinion of the court sexual intercourse took place, but the sexual act cannot amount to rape. The court also referred to the medical reports and stated that as there were no signs of force the consent given by her was voluntary. The judge also used words ‘a shocking liar’ to refer Mathura. The judge also opined that the semen found on the clothes of Mathura would be of some other person with who she might have had sex between the hours of the sexual intercourse with police officers and medical examination. The judge also said that the semen found on the clothes of Ganpat is due to ‘nightly discharge’. Section 375(6) of Indian Penal Code[vi] says that sexual intercourse with a woman under 16 years is rape while her consent is immaterial. The medical report submitted by the doctor says that Mathura was between 14-16 years of age. As there no sufficient evidence to prove that Mathura is above 16 years of age, the police officers was acquitted. The judgment is of sexist tone. The judgment is highly disturbing and objectionable. Mathura appealed to the high court against the acquittal order of Tukaram and Ganpat.
The Bombay High of Bombay court agreed with Sessions court judge in matter of the age of Mathura. Both the courts were very much confident that Dr. Shastrakar’s report was erroneous. The high court distinguished between voluntary consent and passive consent. The high court stated that this is a case of passive submission given with subject to threat of death or injury. The high court interpreted that the reason behind absence of semen near vaginal tear and public hair is because she was tested after 20 hours of the act and she must have also taken a bath in the mean time between the incident and medical checkup. The court also highlighted that the two police officers are completely strangers to Mathura, and there was less probability for her to have voluntary sex with them; she could not be seductive either. The high court concluded that the question of sexual intercourse in the present/instant case is forcible. The high court convicted Tukaram with one year imprisonment and Ganpat with five years of imprisonment. The high court rightly pointed out the gaps missed by Sessions court judge. Tukaram and GAnpat appealed to the Supreme Court against the conviction orders passed by the high court of Bombay against them.
The Supreme Court of India in 1979 overruled the judgment of Bombay High court and had acquitted the said accused. The Supreme Court agreed with the interpretation drawn by the Sessions court judge. The Supreme Court highlighted that, no marks of injury implies no reasonable resistance was done against the rape. The court also opined that she did not raise any alarm to stop the crime, which is a clear voluntary submission by Mathura to police officers for sexual intercourse. Section 375(3) of Indian Penal Code says that While the Court read into Section 375(3) of the IPC to hold that her consent was not obtained by putting her in fear as she didn’t object when she was taken away from her family, it excluded Section 375(2), which states that rape is sexual intercourse with a woman without her consent[vii]. It is amusing that how the courts are sure that Mathura did not shout for help? The doors were locked, and she was raped behind the police station and there are less chances of her to be heard. The point of non-resistance is highlighted by both Sessions and Supreme Court. Even if Mathura resisted herself, she would be powerless in front of those well-built two police officers. Supreme Court agreed with sessions court where it called out the Mathura is ‘habituated to sex’.
Both Sessions Court and High Court made a blunder mistake in interpreting the heinous crime that was committed against and innocent 15 years old girl, Mathura by two police officers Tukaram and Ganpat. This is incident is also called as an incident of custodial rape. The judgment clearly demonstrates that woman can have sex only after she is married, and if woman chooses to have sex prior to marriage she have high possibility to get raped. As so far concerned with the judgment, the judges opined that Mathura might have seduced the two police officers to have sex in order to fulfill her sexual desires. After the day of Judgment four law professors Upendra Baxi, Lotika Sarkar, Raghunath Kelkar and Vasudha Dhagamwar wrote an open letter to the Supreme Court of India questiong the rationale of the judgment. The lines of the letter says, “Your Lordship, does the Indian Supreme Court expect a young girl 14-16 years old, when trapped by two policemen inside the police station, to successfully raise an alarm for help? Does it seriously expect the girl, a labourer, to put up such stiff resistance against well-built policemen so as to have substantial marks of physical injury? Does the absence of such marks necessarily imply absence of stiff resistance?”[viii]. Despite large scale opposition to the verdict passed by the Supreme Court in the case against the victim, the court still took its stand by supporting its judgment stating that there was no legal rule in the law to rule in favor of Mathura. This resulted in the amending rape laws in the country by the government. Major amendments made are:
The courts have to presume that a woman who says that she had not consented to sexual act is telling truth.
Camera rape trials were begun as closed proceedings to ban the disclosure of victim’s details. Usage of their real names was also banned.
The burden of proof for rape shifted form the accuser to the accused.
Before sunrise and after sunset, women cannot be called to the police station for nay kind of purposes.
Mathura rape case verdict can be considered as one of the most blunder and erroneous judgments in the history of Indian Judiciary. Even after numerous amendments done to the rape laws, crime rate is not decreasing.
[i] Indian Penal Code, 1860, s 375, No. 45, Acts of Parliament, 1860 (India).
[ii] Tukaram & Anr v. State of Maharashtra, 1979 AIR 185, 1979 SCR (1) 810
[iii] Indian Penal Code, 1860, s 376, No. 45, Acts of Parliament, 1860 (India).
[iv] Indian Penal Code, 1860, s 375, No. 45, Acts of Parliament, 1860 (India).
[v] Indian Penal Code, 1860, s 354, No. 45, Acts of Parliament, 1860 (India).
[vi] Indian Penal Code, 1860, s 375(6), No. 45, Acts of Parliament, 1860 (India).