The title of this topic today is no less than a story of Mathura, a young girl of the age 14-16, was an orphan who lived with her brother, Gamma, both of them are labourers. Mathura developed a relationship with Ashok, and they decided to get married. Gama lodged a report that she was kidnapped by Ashok and his aunt. They were all brought to the police station at 9 p.m. when their statements were recorded. When everyone started leaving the police station, around 10:30 p.m. Tukaram, the head constable and Ganpat, a constable, directed that Mathura remain at the police station.
Immediately thereafter Ganpat took Mathura into the latrine situated at the rear of the main building, loosened her underwear, lit a torch and stared at her private parts and raped her in spite of her protests and stiff resistance on her part. He departed after satisfying his lust and then Tukaramfondled her private parts in a highly intoxicated condition.
The Sessions Judge found the farthest he would go was to hold that Mathura had sexual intercourse with Ganpat! He feared that Mathura had cried ‘rape’ in order to prove herself ‘virtuous’ before her lover. She was habituated to sexual intercourse.
The Bombay high court erred in appreciating the difference between consent and passive submission.
The honourable Supreme Court found it preposterous that she would be so overawed by the fact of appellants being persons in authority or the circumstance that she was just emerging from a police station that she would make no attempt at all to resist.
The Court holds that under Section 375 of the Penal Code, only the “fear of death or hurt” can vitiate consent for sexual intercourse. There was no such finding recorded.
Mr Upendra Baxi wrote an open letter to the chief justice of India
over this decision rendered by the Supreme Court on September 15, 1978. He asked a few questions;
- The fact remains that she was asked to remain in the police station even after her statement was recorded and her friends and relations were asked to leave. Why?
- Tukaram did nothing whatsoever to rescue the girl from Ganpat. Why?
- Tukaram was intoxicated. But this is not considered material either. Why? Why were the lights closed and doors shut?
- 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 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?
- Does the Court believe that Mathura was so flirtatious that even when her brother, her employer and her lover were waiting outside the police station that she could not let go the opportunity of having fun with two policemen and that too in the area adjoining a police station latrine?
- What about semen marks on Ganpat’s trousers? Why this double standard? Ganpat’s sexual habits give him the benefit of doubt of having ‘raped’ Mathura; her sexual habits make the Court disbelieve the story of the rape altogether!
The ink is hardly dry on the decision in Nandini Satpathy [(1978) 2 SCC 424] when the Supreme Court, speaking through Justice Krishna Iyer, condemned the practice of calling women to the police station in gross violation of section 160(1) of the Criminal Procedure Code.The court gives no consideration whatsoever to the socio-economic status, the lack of knowledge of legal rights, the age of victim, lack of access to legal services, and the fear complex which haunts the poor and the exploited in Indian police stations.
Mathura, with all her predicaments, has been fortunate that her problem reached the High Court and your Court. But there are, millions of Mathuras in whose situations even the first information reports are not filed.
Mathura, with all her predicaments, has been fortunate that her problem reached the High Court and your Court. But there are, millions of Mathuras in whose situations even the first information reports are not filed,illiterate, labouring, politically mute Mathuras of India be continually condemned to their pre-constitutional Indian fate?Surely, the plight of millions of Mathuras in this country is as important as that of Golak Nath, and His Holiness Kesavananda Bharati, challenging the validity of restriction on the right to property as a fundamental right; whose case were heard by a full court.
Against ratio of this judgment protest started all over India. Due to public pressure criminal laws were changed to nullify the ratio of judgment of this case. In 1983 Indian Evidence Act, IPC and C.r.p.c were amended at large scale.
According to section 114A of Indian Evidence Act, in rape cases\
(i) where sexual intercourse by the accused is proved and
(ii) such woman states in her evidence before the court that she did not consent.
If both the conditions are proved then presumption of absence of consent will be and burden of prove regarding presence of consent shall lies over accused.
Explanation 2 of section 375
‘’Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.”
‘Provided that’ and section 114A has been inserted to prevent repetition like ratio of Tukaram Case.
State of U.P. v. Chottey Lal (2011) S.C.
Difference between “against her will” and “without her consent”
The expressions “against her will” and “without her consent” may overlap sometimes but surely the two expressions in clause Firstly and clause Secondly have different connotation and dimension. The expression “against her will” would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition. On the other hand, the expression “without her consent” would comprehend an act of reason accompanied by deliberation.