The case of Tukaram & Anr v. State of Maharashtra[i] is famously known as the ‘Mathura Rape Case’. The Judgement rendered by the Apex Court of the country as well as the decision and opinions of the Sessions court sparked a nation-wide rage. The case was not only highly controversial due to the remarks of the lower as well as the Apex Court, but also because it brought forth the issue of “passive consent” (or forced submissive consent, as I prefer calling it), dealt with the role of ‘chastity or virginity of a woman’ in cases of Rape and addressed the concept of custodial rape. This case incited a nation-wide outrage in the country with respect to sexual violence and atrocities committed against women. The judgement accompanied by quite a few problematic opinions led to changes in several laws.
Facts of Tukaram v. State of Maharashtra (Mathura Rape Case)
A minor girl named Mathura worked as domestic help at a lady named Nushi’s house. She grew fond of Nushi’s nephew Ashok and they got intimate with each other. Ashok wanted to marry Mathura, but her brother did not agree to it. Consequently, he lodged a complaint on 26th March 1972 with the local police station in Maharashtra’s Desaijang. He alleged that his sister was kidnapped by Nushi, Ashok and Nushi’s husband. The same was recorded by Head Constable Baburao. The police authority brought Ashok along with his family members to the police station. It was approximately 10:30 pm when the head constable headed out.
Later, Mathura as well as the others headed to leave the police station. But the appellants had something else in mind. So, they asked Mathura to wait back and the rest were told to wait outside. One of the appellants i.e., Ganpat accompanied Mathura to the latrine where he outraged her modesty by disrobing her and staring at the minor girl’s private parts. He raped her in the latrine, she was then dragged to a ‘chappri’ where the appellant violated her by raping her again. Once Ganpat was done violating the minor girl, his colleague, Tukaram was next in line. Although Tukaram was too intoxicated to rape her, he fondled with the minor’s private parts.
The people waiting outside grew suspicious and called out for Mathura. Later, she came out and narrated the heinous crime committed upon her. Buburao, the Head Constable was then brought to the station to take the victim’s statement. The victim was examined by a doctor who observed that there was no injury on her body, the hymen had old ruptures, the victim’s vagina could be penetrated with two fingers without any hassle and that there was no matting of the pubic hair.
Issues of the Case
- Whether the minor girl consented to the act?
- Whether the appellants will be charged under Section 376 of Indian Penal Code (hereinafter referred to as “IPC”)?
- Whether the act committed by the police officer amount to rape as provided in the concerned section of IPC?
- Whether the grounds of acquittal of the police officer by the Court are valid?
Session Court’s Remarks in Mathura Rape Case
The sessions court in its observation found the defendants to not be guilty. The observations and the remarks of the Sessions Court were highly disturbing. The court went on to state that the minor girl was ‘habituated to sexual intercourse’, therefore, her consent was voluntary. In the opinion of the Sessions Court, sexual intercourse had taken place but it could not amount to rape. The Court even referred to the medical reports which stated that there were no signs of ‘force’ upon the girl. The court even used words like ‘a shocking liar’ while referring to the minor girl and said that her testimony was ‘riddled with falsehood and improbabilities’. Hence, the defendants were acquitted.
High Court’s Findings in Mathura Rape Case
Unlike the Sessions Court, the High Court had a differing view. The High Court observed that the Sessions court had erred in interpreting the meaning and difference between consent and passive submission. The High Court also made a several logical observations. The High Court was of the view that the “absence of semen on the vaginal smears and pubic hair” was due to the fact that the minor girl was examined twenty hours after the incident had occurred and that she must have showered any time after the incident and the medical check-up. The High Court Stated that the two constables were complete strangers to her, therefore, the possibility of her consenting to the sexual act would be almost negligible.
The girl was also there because her brother wanted to lodge a complaint against her lover, in such circumstances, the girl was less likely to consent to sexual intercourse. The Hon’ble High Court was even sensitive enough to acknowledge the fact that the accused must have initiated the derogatory act and if so, the minor girl was not in a position to resist. Therefore, considering the concept of passive consent is their interpretation. Consequently, the High Court convicted and sentenced the two appellants.
Supreme Court’s Observations in Mathura Rape Case
The Apex Court had a yet controversial opinion. The opinion of the Supreme Court did not align with the High Court, but that of the Sessions Court. In the opinion of the Apex Court, the consent was not a passive consent. The Apex Court also placed relevance upon no marks of injury of the girl’s body, no signs of resistance, lack of attempt in raising an alarm, etc. The court totally disregarded the fact that she was induced to give her consent due to various reasons. The court regarded this incident of rape as a ‘peaceful affair’. The court also took the findings on the basis of ‘the two-finger test’ into consideration, which highly demeaning to the rape survivor. As a result, the two culprits were acquitted.
Criminal Law (Second Amendment) Act, 1983
There were certain changes in law post the controversial decision of the Supreme Court in the Mathura Rape Case. The Criminal Law (Second Amendment) Act, 1983 was enacted in the year 1983.
1. Indian Evidence Act: Section 114(A) was added to 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 shifted the onus from the accuser (victim) to the accused after the intercourse was established. Therefore, the concept of ‘presumption regarding non-consent of the rape survivor’ was brought about. A provision for the prohibition on the disclosure of the victim’s identity was also added.
2. Indian Penal Code: Section 376(A), Section 376(B), Section 376(C), Section 376(D) in IPC were added which emphasized upon rape committed by person in authority and another section which made the aforesaid act of rape punishable was added. A Clause was also dedicated to women of unsound mind or intoxicated women.
3. Criminal Procedure Code: The amended also added provisions for in-camera trials.
Analysis of the impact on Judiciary’ Interpretation
In the Mathura Rape Case, not only did the Sessions Court take a sexist approach while dealing with this case, but also the Supreme Court of India made similar observations. The Supreme Court had erred in recognizing the fact that the victim’s lack of resistance could be due to various factors, but the court equated lack of resistance with consent. This case became a classic case of ‘victim’s character assassination’. It is rather depressing to know that even the learned judges of the Supreme Court of India shared similar observations as the Sessions Court. The judgement rendered in this case was very upsetting and disappointing, which ultimately led to an uproar in the nation and several letters were drafted addressing them to the then Chief Justice of India.
This judgement of Mathura Rape Case led to quite some changes in the criminal laws, especially the IPC and the Indian Evidence Act. The case even had lasting impact on the judiciary and the way it handles similar cases. Mathura Rape case was simply an havoc. It was a sheer depiction of insensitivity on part of the lower as well as the Apex court to target the victim’s character or certain facts of the crime like ‘absence of semen in private parts’, ‘no cry for help’, ‘no marks of injury’, etc.
The judiciary’s approach pertaining to cases of custodial rape has become comparatively sensitive. The decisions of various High Courts like the decision of the Madras High Court in the case V. Vijayabadri v. State of Tamil Nadu[ii], which dealt with compensation being awarded to the victim/s of custodial rape was plausible. The Madras High Court made a remarkable observation and opined
“In the instant case, it can be said without fear of contradiction that at least, there is a prima facie case of the victim Lakshmi having been criminally assaulted at the police station and ravished to suffer not only physically, but also mentally. The scar caused by body wound may heal up, but the agony of having been ravished may not leave the appellant. Even though sufferings of the victims in this case has been openly conceded by the respondents in this case, their only defence is they will provide the adequate monetary help to the victims soon after the disposal of the criminal case pending before the Sessions Court. That being so, there is nothing wrong in directing the respondents to pay some more interim compensation even during the pendency of the Sessions case, considering the status of the victims both social and economical. Further herein we have to take into consideration the fact that the victims have to face the criminal proceedings against the powerful police officials armed with men and matter. In such a circumstance, sanctioning atleast some amount of interim compensation in this case has become inevitable.”
The Madras High Court was extremely sympathetic in recognising the fact that although the mental damage cannot be reversed, the least that can be done is to provide the victim with compensation or monetary relief. The Madras High Court even recognised the significant role Police Officers play as custodians of law and made no attempts to defend their gruesome act. Unlike the repugnant remarks passed by the Apex Court as well as the Sessions Court in the Mathura Rape Case, the judiciary has now become sensitive in addressing similar cases.
The Courts across the country have started taking considerable efforts in not adding to the emotional distress and trauma of the victim of such heinous crimes by not maligning the character of the victim and refraining passing lewd remarks upon the same. Nonetheless, sadly, all the courts in the country are not following same approach. In a few recent cases, like the Tarun Tejpal Rape Case, a Goa Sessions Court targeted the victim’s sexual history and acquitted the accused.
The session’s court’s verdict highlighted the victim’s past sexual encounters in graphic details. The country cannot move forward and ‘protect’ its women if the judiciary, while giving the judgement, does not refrain from taking an orthodox, conservative, stereotypical approach as projected in the Mathura Rape Case as well as Tarun Tejpal Case. The court completely disregarded the post trauma behaviour of the victim and made a direct attacks upon the victim’s sexual history.
Unlike the Goa Session Court, the Apex Court, in the case of Aparna Bhat & Ors. v State of Madhya Pradesh & Anr[iii], has specifically cautioned about the dangers of stereotyping rape survivors. The court even addressed the ‘Rape Myths’ such as “stereotyped notions of chastity, resistance to rape, having visible physical injuries, behaving a certain way, reporting the offence immediately etc.” Although, certain courts have been making an effort to disregard the aforementioned ‘Rape Myths’, some courts simply fail to recognize the same.
The issue of ‘custodial rape’ was brought to light because of the Mathura Rape Case. The case not only dealt with pertinent issues regarding passive consent, signs of evidence on the body, a woman’s past sexual encounters, etc. but also brought forth the sexist ideologies the judiciary had while dealing with this particular rape. It is extremely heart breaking to highlight that such sexist, orthodox and conservative ideologies still persist in not only the judiciary but even the Indian society in general. It is high time we do away with such a backward mentality and rather encourage the victims of such heinous crimes to come forward and speak up without instilling the fear of ‘being shunned by society.
[i] 1979 AIR 185
[ii] 1998 SCC OnLine Mad 1624.
[iii] 2021 SCC OnLine SC 230
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