Author: MAYANK JHA (Student B.B.A.,LL.B., IV Year), FIMT School of Law (GGSIPU)
The word rape is derived from a Latin term “Rapio”, which in literally means ‘to seize’. Rape is that demon what once happen loses its mark on body and mind of the victim and the similar impact can also be seen on the family too. Impact remains for a longer period of time. Even the society also observe victim in such a way and award her a character certificate. Because of which she carries this mark with her character.
I believe that “The girl who walks through the school gates wearing her uniform doesn't leave behind the girl whose life at home is defined by custom and rituals and the demands and expectations of her family and community. The two girls inhabit the same body but they lead contrasting mental lives”.
It is a bitter truth that after Seventy-Three years of independence we are still using this quotation for women in our country.
Society raise different questions in front of the rape victims like-
On her clothes, about her friends or why she is coming home too late?
Before asking, saying and before any concluding remarks society have to understand the situation of the victim. That what she is facing right now. No victim wants to risk stigmatization and scrutiny in their lives, especially in campus society.
MEANING OF CUSTODY:
In general sense the term custody means the legal right to take care of something or somebody, especially children. It is the temporary possession or care of somebody else property. But in the legal sense it is the state of being imprisoned or detained usually pending in trial.
WHAT IS CUSTODIAL RAPE:
Custodial rape takes place when the rape is done by a man in whose custody the woman is. Men who keep the woman in custody are generally in a very strong and powerful position. If they misuse their position to sexually exploit women, it is a very serious crime.
Basically, in custody when any person is under the care, supervision and control of another person or institution, called custodian. Custodian having an absolute control over the person who is in the custody. Some of the examples of custody are- detention through the police, army and other security forces.
At the time of national emergency in 1975-77, the state assumed arbitrary and unfettered powers, dispensed with public accountability for its actions and clamped down heavily on the citizen’s civil liberties. This experience awakened an acute consciousness in the judiciary and civil society, of the dangers of state power and how it could be used to violate and trample personal liberties.
Ø Sec. 375 of IPC, 1860 – Defines rape as a criminal offence and states that a man is said to commit rape when he has sexual intercourse with a woman against her or without her consent or if she is a minor. u/s 375 just penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
A man said to commit rape when he has sexual intercourse with a woman under any of the following situation:
1. Against her will
2. Without her consent
3. With her consent but the consent was obtained by putting her or any person close to her in fear of death or of hurt.
4. With her consent but the man knows that he is not her husband and the consent was given because the woman believes that he is the man with whom she is or believes herself to be lawfully married.
5. With her consent but at the time of giving such consent the woman was unable to understand the nature and consequences of her consent.
6. With or without her consent, when the woman is below the age of 16
Explanation – Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception – Sexual intercourse by a man with his wife, the wife nor being under 15 years of age is not rape.
Ø Sec. 376 of IPC defines punishment for rape – It shall not be less than seven years but may extend to life imprisonment or a term which may extend to ten years and shall also be liable to fine. If the woman raped as his own wife and is not below the age of 12 years, the punishment may extend to two years imprisonment or with fine or with both.
CASE LAWS ON CUSTODIAL RAPE:
ØTukaram v. State of Maharashtra, (1979) 2 SCC 143 [Mathura case]
Facts of the case briefly are as follows. Mathura, a young girl of the age 14-16, was an orphan who lived with her brother, Gama both of them laborer’s. Mathura developed a relationship with Ashok, the cousin of Nushi at whose house she used to work and they decided to get married on March 26, 1972, Gama lodged a report that she was kidnapped by Nushi, her husband and Ashok. They were all brought to the police station at 9 p.m. when their statements were recorded. When everyone started to leave the police station, around 10:30 p.m. Tukaram, the head constable and Ganpat, a constable, directed that Mathura remain at the police station. After that, she was raped by two police officials in the police station.
Thereafter, matter went to the trial court but accused persons were acquitted by the trial court,
Reversal of acquittal by the Bombay High Court,
Matterwent to the Hon’ble Supreme Court- Reversal of High Court’s verdict stated that the decision severely criticized with detailed reasonings. Second and third components of sec. 375 discussed.
Ø Smt. Rameeza Bee v. D Armugam (1978) [Rameeza Bee Case]
In this case, Rmeeza Bee was a 26-year-old lady. She was returning home along with her husband, Ahmad Husain. Ahmad was a rickshaw puller when both of them on their way the police personnel arrested them for loitering late in the night. Police personnel asked them to pay fine. They kept Rameeza in custody and was raped by three police officers. At that time her husband was sent home to bring money to pay the fine. When he returned and get to know about such incident, he started protesting against the act which was committed by the officers. But he was beaten by the police mercilessly to death by the policemen. Later, Rameeza complained about the incident. After her complaint many protests were took place. Because of which inquiry commission [Muktdar Commission] was set up. The commission ultimately held that police officers were found guilty as per our findings. But, all of them were acquitted on the grounds stating that evidence recorded by the Muktdar Commission was in admissible in the sessions court.
Ø Maya Tyagi, Meerut v. Ito, Baraut (1980) [Maya Tyagi Case]
In this case, the victim was travelling in a car with her husband Ishwar Tyagi and two of her husband’s friends. While they were travelling something happened in the car. So, her husband and her husband’s friends left to get the tire. At the mean time a police officer came in and molested Maya Tyagi. When her husband saw him, he slapped that police officer. Thereafter, the police officer returned with other ten policemen. Then they shot dead Ishwar Tyagi and his two friends. Maya Tyagi was then dragged out of the car, stripped naked and paraded through the market place. When she tried to resist, police officers took her to the police station. And was mercilessly tortured and framed false charges against her. Police said she was dacoit’s mistress. After this incident judicial inquiry took place in which police officials were trying to justify their actions. But after the culmination of judicial inquiry the court held that, Maya Tyagi, her husband and two friends were not dacoit’s and false allegations and charges were framed by the police officials.
The tortuous incidents told by Maya Tyagi was true.
However, there was no penetration because of which police officials were acquitted.
Now at this point of time, I would like to share one thing i.e. few days back in Bombay High Court on 16 July, 2021 Justice Revati Mohite-Dere said that sexual assault without penetration is also rape.
After going through all the stated important case laws the major question in front of us was – What next?
After the judgement of Mathura case an open letter was written by Upendra Baxi, Vasudha Dhagamwar, Ragunath Kelkar, Latika Sarkar on sept. 16, 1979 to focus judicial attention and public debate over a decision rendered by the Supreme Court on sept. 15, 1978. The decision was rendered by Justice Jaswant Singh, Kailasam and Koshal in Tukaram v. State of Maharashtra.
Some of the important points raised in the letter on which the spot light is necessary are-
1. The letter said, “Your lordship, this is an extraordinary decision sacrificing human rights of women under the law and the constitution. The court has provided no cogent analysis as to why the factors which weighed with the High Court were insufficient to justify conviction for rape”.
2. The letter also said that, “My Lord, the ink is hardly dry on the decision in Nandini Satpathy (1978) 2 SCC 424 when the SC, speaking through Justice Krishna Iyer, condemned the practice of calling women to police stations in gross violation of Sec. 160(1) talks about ‘Police officer’s power to require attendance of witnesses’ under Cr. PC, 1973”.
The aftermath result of this letter was “The Criminal law (Amendment) Act, 1983 also known as Anti Rape Law Amendment provides for penalties varying from seven years rigorous imprisonment to life term to those found guilty of committing rape. The amended provision makes sexual intercourse by a person in the position of a custodian of his victim- termed ‘Custodial Rape’ as an offence punishable with imprisonment of at least ten years, which may extend to life and also to fine.
Sec. 376-B, 376-C, 376-D inserted by the Amendment Act of 1983 deal with Custodial rape.
Ø Sec. 376-B: Prescribes punishment, which may extend to five years and also liable to fine for intercourse by a public servant with a woman in his custody/ official position or induces or seduces any woman.
Ø Sec. 376-C: It provides punishment of five years imprisonment and also fine for intercourse by Superintendent of Jail, remand home or other place or custody with a woman in his custody.
Ø Sec. 376-D: It provides punishment of five years imprisonment and also fine for intercourse by any member of the management or staff of a hospital with any woman in that hospital.
Changes in Indian Evidence Act, 1872.
Ø Sec. 114A: Presumption as to absence of consent in certain prosecutions for rape. Applies only in the following cases-
a) Rape by a police officer of a woman in his custody or within in a police station or station house.
b) Rape by a public servant of a woman in his or his subordinate custody.
c) Rape of an inmate by staff of a jail, remand home or other place of custody or of a woman’s or children’s institution.
d) Rape of a woman in a hospital by a member of the management or staff of that hospital.
e) Rape of a pregnant woman.
f) Gang rape.
But we also need to note that every presumption is a rebuttable presumption.
The stated amendments were essentially required. We should not only make castles in the air,but also work on the ground zero.
Surely, the plight of millions of Mathuras, Rameeza, Maya Tyagi in this country is as important as that of Golak Nath, and his holiness Keshvananda Bharti challenging the validity of restriction on the right to property as a fundamental right, whose cases were heard by a full court. That is why these amendments were required.
It was the opening to talk about violence against women, sexual violence against women. Outsight the patriarchal framework.
How we should address certain issues relating to women?
How we should look at the collaborative evidence?
How we should look at the testimony of the survivor?
These were the things which were thrown up because of the Mathura, Rameeza and Maya Tyagi’s decisions.
Although they herself got no justice. But it started a process which culminated in the year 2013. And in my opinion law is just like a universe. Because the circumference of law is expanding day by day, never ending. Law changes its nature as per the need.
Prof. Baxi said, “India is said to be young. So, it is yo