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Bombay High Court

Marital Rape Jurisprudence: Inconsistencies Reaffirming Cruelty Based on Age

by Guest Author 08/12/2024

written by Guest Author

By Lauren Prem

Cruelty anywhere is sickening, but cruelty within marriage is ironic and sickening! Marital rape has been a contested issue since time immemorial. The issue resurfaced after the recent Bombay High Court’s ruling on 12^th November 2024, wherein a man’s 10-year jail sentence for committing rape on his minor wife, was upheld. While there is no fault in the court’s decision, the news brought me to many realizations relating to the inconsistencies that plague rape laws in India.

The Marital Rape Exception (MRE), previously found in the IPC, is retained in the new penal code under section 63, which defines rape. Exception II reads “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.” Applying the law, the Bombay HC ruled that the exception will be inapplicable to the case at hand, by virtue of the wife being a minor, as minors are incapable of giving consent. This raises jurisprudential questions as to whether consent is the sole-determining factor, if not a crucial factor, in marital rape cases.

The judgement portrays consent to be crucial in marital rape cases. On the other hand, the MRE provision states otherwise. In this long-standing debate, proponents of MRE stated that marriage itself is construed as consent and consent for every individual act is not necessary. The MRE is, however, inapplicable to minors based on the aspect of consent. If these two arguments are read-together, a real conundrum exists.

Many significant questions arise. Does consent play a role in construing MRE? If not, what is the basis for the age differentiation in the MRE provision? The MRE makes a demarcation of married women based on age of majority. The basis of demarcation is severely flawed as individual consent holds no relevance in determining marital rape. The MRE itself is premised on the presumption that marriage is adequate to establish the existence of consent. This shatters the basis of treating minor married women differently.

This inconsistency practically serves a good purpose for minor married women by prohibiting the applicability of MRE. However, it makes a differentiation that is plainly an inconsistency reaffirming cruelty based on age. The rationale in the ruling logically prompts us to ask – would consent be factored in, if the woman in the case was a major? The answer certainly being in the negative, directs us to question basis and existence of the MRE provision itself.

The right to question this unscrupulous provision need not only vest with a law student capable of unpacking the sheer inconsistencies within the law. It becomes the right of every citizen to question the unfulfilled promises made to him. After the Modi government made an attractive promise of revamping the criminal law system to erase colonial traces, every citizen may ask – is it more Bharatiya to sanction rape?

To question inconsistencies is just the cherry on top. As with or without inconsistencies, a citizen may question legally sanctioned cruelty in a Bharat that has proudly developed a strong fundamental right jurisprudence since independence. Laws are constantly produced and interpreted by courts. In fact, the basic structure doctrine – declaring fundamental rights to be a basic feature of the constitution was evolved during a time when the MRE existed in the IPC. This has led to a status where multitude of laws and doctrines are followed simultaneously without according priority to the non-negotiable rights.

Even worse, fundamental rights have assumed a conditional status. Marriage, viewed to be a beautiful union, has proven to have swept fundamental rights under a rug. Although stereotypes ought to change through societal mindsets, judgements and laws play a huge role in setting standards for the society. The new criminal laws are gruesome for not only setting a bad standard but for reaffirming it. People may vary in their opinions and ideals but a government needs to uphold the best interests of its citizens.

The existence of the MRE perpetuates cruelty and creates a state of chaos that has a possibility of disrupting the long-thread of fundamental right jurisprudence developed by the judiciary. The ball is in the government’s court to set a new ideal – one which upholds equality before law and truly removes colonial traces!

08/12/2024 0 comments 45 views

Steering the ‘Menstrual Leave Policy’ Debate in a Legal Direction

by Guest Author 08/12/2024

written by Guest Author

By Lauren Prem

The long-standing debate regarding menstrual leave policy (hereinafter referred to as ‘the policy’) has erupted once again since the Supreme Court dismissed a petition seeking menstrual leave, on 8^th July 2024. A three-judge bench consisting of CJI DY Chandrachud and Justices J.B. Pardiwala and Manoj Mishra stated that the court cannot take up policy matters that fall clearly within the executive’s domain and in turn, directed the government to frame a policy for the same. A concern flagged by CJI DY Chandrachud while dismissing the petition revolves around gender representation as it is feared that recruiters will have lesser preferences for women due to the ‘paid leave’ factor.

While gender representation is largely viewed as a social issue, legal experts have contributed to this debate by voicing out their concerns regarding legislating on menstrual leave to ensure strict implementation.

Legal luminaries believe that biological differences must be taken into account in order to ensure inclusivity in the work place. In other words, women should not be held back from success due to something beyond their control. In addition to the argument concerning equality, it is widely acknowledged that health is an important part of performance and productivity and that the policy will ensure a healthier women workforce. As Supreme Court advocate Karuna Nundy shares ‘productivity is much better when people are feeling well.’

The concern flagged by Justice DY Chandrachud lies at the heart of this ‘menstrual leave policy’ debate. The concern holds a presumption that a line of reasoning based on inclusivity would prove to be counterproductive as recruiters will be keen on selecting those who can offer higher productive hours. Further, studies show lesser female participation in workforce due to maternity leave and it is feared that the same would be the case with this policy also. Some lawyers also believe that the menstrual leave policy does not boil down to a ‘gender issue’ because every gender comes with its own set of ailments.

Arguments revolving around equality forms the very core of the menstrual leave policy debate. It is argued that women should not be discriminated based on their menstrual status. Arguments, along similar lines, ultimately narrow down to Aristotle’s notion of ‘treating equals equally and unequals unequally’ which has formed the crux of the equality code imbibed in article 14 of the constitution. Against the backdrop of this debate, unequals are being treated equally, as in, women who undergo menstrual pain are treated equally to men who do not undergo such pain. This, in turn, hinders women from achieving their full potential.

Another perspective of the menstrual leave policy laid out in the dismissed petition is that companies and workplaces in some states have already implemented the policy and it is discriminatory to women in those states that do not have such a policy, due to federalism. In other words, women within India are treated differently in different states. However, advocate Nundy considers this to be an incorrect interpretation of article 14. The reason might have been that policies are not justiciable per se and cannot be violative of fundamental rights. This pushed the debate further to a need for a legislation on this matter.

Advocate Abha Singh from the Bombay HC also interprets this policy in light of article 14. She demonstrates how the classification of leave made for women passes the test of reasonable classification under this particular article. This test has two requirements. Firstly, the classification made must be intelligible. Secondly, there must be a rational nexus between the classification and the object sought to be achieved by such classification. She expounds the objective of this policy to be one that ensures women do not compromise on their health and well-being, which hinders productivity. The classification made is intelligible and it bears a rational nexus with the object it seeks to achieve, that is, productivity through ensuring health.

Several constitutional principles point towards a maternity benefit policy to be put in place. For instance, article 39(a) of the Constitution states that the state must ensure ‘the health and strength of workers, men, and women.’ While article 42 provides that the state must ‘make provisions for securing just and humane conditions of work and maternity relief.’ Article 47 states that the state has a duty to ‘raise standards of living and improve public health.’ In the absence of a policy, women may be forced to work with poor health conditions in order to avail their fully salary. This deteriorates their health further and contravenes the obligations of the state laid down in the directive principles of state policy.

Article 15(3) states that the state shall make provisions for the betterment of women and children. On top of this, women have a right to work under article 19(1)(g), which they cannot fully exercise without proper working conditions during menstruation. Supreme Court advocate Pallavi Pratap highlights that women do not have access to clean and hygienic alternatives at their workplace to cater to their menstrual needs.

The menstrual leave policy debate has opened discussions in legal, social and ethical spheres. While most arguments run along the lines of social transformation, gender representation and productivity, their roots can be located in legal jurisprudence and constitutional principles that strengthen women rights. Therefore, various interpretations of article 14 by different advocates and perceptions of the equality code form the heart and soul of this debate.

The equality code under article 14 of the Constitution should undoubtedly prevail over issues of productivity, that are wrongly located in work presence rather than efficiency and contribution, especially because the classification in this particular scenario clearly passes the test of intelligible differentia. Finally, directive principles of state policy, which are non-justiciable guidelines to be followed by the state, also advocate for the menstrual leave policy in addition to fundamental rights under part III of the Constitution.

The ball is now in the Government’s court and it remains to be seen whether the government comes up with a uniform policy on menstrual leave for women across India.

08/12/2024 0 comments 41 views

Using The Term “Item” To Address Any Girl Is Obviously Insulting In Nature: Special Pocso Court, Mumbai

by Guest Author 08/12/2024

written by Guest Author

By Srishti Sarraf

In its recent judgement the Special POCSO Court at Borivali Division, Dindoshi, Mumbai has observed that “using the term “item” to address any girl is obviously insulting in nature. The accused having addressed her by using the term “item” which is a term used generally by boys to address girls in a derogatory fashion as it sexually objectifies them, the same will indicate his intention of outraging her modesty. Such offences need to be dealt with a heavy hand as a lesson needs to be meted out to such roadside Romeos, to protect the women from their uncalled-for behaviour.” In the course of arguments, the learned Assistant Public Prosecutor has also submitted that “a sentence sufficient to send out a proper message to the society at large should be imposed upon the accused as people like him make the lives of the girls miserable, by teasing them and touching them inappropriately when they walk on the road.”

THE FACTUAL MATRIX OF THE CASE

In the instant matter, the accused man pulled the hair of a 16-year-old girl, and said “kya item kidhar ja rahi ho?” It was alleged that the accused used to habitually tease the girls of the locality and used to consistently follow the victim when she used to go to and fro the lanes passing offensive comments and looking upon her with an evil eye. Even after the victim has explicitly told the accused not to do so he did not pay any attention to her words. Initially, the victim tolerated such behaviour of the accused as she did not want the matter to escalate into a fight, thereby not informing her family members about the harassment being suffered by her at hands of the accused. However, on a fateful day while she was returning from her school and walking through a lane when the accused who was sitting with his friends in the lane came behind her, pulled her hair and said “kya item kidhar ja rahi ho?”. The victim girl mustering courage reacted and gave a call to the number 100 from the spot. Even though the police reached the spot within a short period, by that time, the accused had run away from the spot. However, she didn’t lose hope, went home and informed her father about the incident and lodged an FIR against the accused for the offences punishable u/s.354, 354-D, 504, 506 of the Indian Penal Code, 1860 and u/s.12 of the Protection of Children from Sexual Offences Act, 2012. Thereafter, necessary inquiries had been made with her, her statements were recorded before the learned Metropolitan Magistrate and charges against the accused were framed, subsequently.

STAND OF THE PARTIES

The accused pleaded not guilty to the charges framed against him and claimed to be tried. It is not out of place to mention here that the major defence put forth by the accused was that of false implication. The accused contended that the victim and the accused were friends since before the incident in question and that a false report had been lodged against him as their friendship was not liked by the parents of the victim. However, the accused has neither examined himself nor any witness in support of his contentions. In this regard, the learned Advocate for the accused has also pleaded that as no other crime has even been registered against the accused and considering that he is a young boy whose whole future lies ahead of him, a lenient view should be taken.

Per contra, the learned Assistant Public Prosecutor has pointed out that a sentence sufficient to send out a proper message to the society at large should be imposed upon the accused as people like him make the lives of the girls miserable, by teasing them and touching them inappropriately when they walk on the road. Here it must be noted that upon being examined the victim who happens to be the sole and primary witness of the case deposed that before the incident in question which had resulted in the lodging of the report, the accused used to continuously follow her and used to address her by using word “item”. She also went on and assert that the accused always used to pass comments whenever she used to pass through the area near her house and that on the day of the incident, the accused had come behind the victim, pulled her hair and had then said, “ae item sun na.” As per her testimony, she also pushed him and told him not to do so whereupon the accused started abusing her and said that she could do what she wanted and “tu mera kya ukhad legi?”

STAND OF THE HON’BLE COURT

While reaching the conclusion and evaluating the merits of the arguments advanced on behalf of the parties, the Court out rightly rejected the contention as advanced on behalf of the accused as there was no evidence on the record to support the said contentions. On the other hand, it was pointed out that to bring home the offence under section 354 of the Code, the prosecution is required to prove the fact of the accused having either assaulted or used criminal force on a woman with the intention to outrage her modesty or with the knowledge that the said act would likely outrage the said modesty of the victim and in the light of the peculiar facts of the case in hand, the fact of the accused having intentionally caught hold of the victim’s hair and having pulled it, as also of the calling her an “item”, will certainly go to prove the fact of the having outraged her modesty. The Court went on to reason its stand observing that “the victim and the accused not being related in any way and not being in any kind of relationship, it was wholly inappropriate of the accused to act in the way in which he did, which act qualifies as using criminal force to her. Further, the accused addressed her by using the term “item” which is a term used generally by boys to address girls in a derogatory fashion as it sexually objectifies them. the same will indicate his intention of outraging her modesty.”

It is also notable that other contentions were also raised by the accused on some technical grounds, for instance, a contradiction has been sought to be created on behalf of the accused regarding the time of the occurrence of the incident but the same was rejected. Further, it was pointed out that none of the policemen who dealt with the crime in question had gone to the spot and executed the spot panchanama or even recorded the statement of any other persons who could have been at the spot at the relevant time. But the Court on this point also observed that even if this is so, the accused cannot derive any benefit from the same as the testimony of the victim was found to be clear, cogent and reliable and as per settled principle of law defects if any left in the investigation by the police cannot by themselves be a ground to disbelieve the prosecution case unless and until the said defect is such that it causes prejudice to the accused.

Consequently, the Court held that there does not arise any question of granting the benefit of probation to the accused or showing unwarranted leniency to him further sentencing the accused to suffer Simple Imprisonment for one and half years and to pay a fine of Rs.500/- in default of which, he shall undergo further Simple Imprisonment for 3 months for the offences punishable under section 354 of the Indian Penal Code,1860 and under section 12 of Protection of Children from Sexual Offences Act, 2012 as the victim was aged only about 15 and ½ years on the day of the incident thus being “child” within the meaning of the term as given to it u/s.2(d) of the POCSO Act, 2012. However, the accused was acquitted of the offences punishable under sections 354-D, 504 and 506 Part-I of the Indian Penal Code, 1860 vide Section 235(1) of the Code of Criminal Procedure, 1973 on the ground of want of particular ingredients of the mentioned offences.

OTHER INCIDENTS WHERE STRONG STANDS HAVE BEEN TAKEN BY THE COURTS IN BOMBAY

Notably, the Bombay Courts can be seen to have strong stands against instances of sexual harassment against women or more particularly where the question of the modesty of a woman was involved. For instance, in the case where a 45 years old happily married woman lodged a report with the Police Station, alleging that a man who happened to be the owner of a neighbouring grocery shop, approached her when she was washing utensils and tried to handover a chit and when she refused to accept the chit, he threw the same on her person and left muttering “I love you” and before the incident also the accused was flirting with her on many occasions and used to throw small pebbles on her person and was indulged in making obscene gestures, keeping all the technicalities apart, the Nagpur Bench observed that “the cumulative effect of the evidence on record, particularly, the version of the victim, would suggest that she is a married woman, aged 45 years and the very act of throwing a chit on her person which professes love for her and which contains poetic verses, albeit extremely, purely written is sufficient to outrage the modesty of a woman.” It was further observed that “The modesty of a woman is her most precious jewel and there cannot be a straitjacket formula to ascertain whether modesty is outraged.” Subsequently, the accused was convicted for the offences punishable under Sections 354 and 509 of IPC, 1860. Similarly, the bench at Aurangabad, dismissing a criminal revision appeal vide its judgement dated 21st December 2021 held that “touching any part of the body of a woman without her consent that too in the dead hour of the night by a stranger amounts to a violation of modesty of a woman.” In this case, the accused was sitting at the feet of the victim and had touched her feet and was sitting on her cot that too at such an odd hour of the night upon being ensured in the evening by the victim that her husband would not be present in the house in the night. Observing that when the act of the accused was capable of shocking the sense of decency of any woman and that the act of the accused indicated that he had gone there with sexual intent and violated the modesty of the victim the Court convicted him for the offence punishable under Section 354 and Section 451 of the I.P.C., 1860.

08/12/2024 0 comments 25 views

Stand of The Supreme Court on Rights of Sex Workers: The Story so far.

by Guest Author 08/12/2024

written by Guest Author

By Srishti Sarraf

The Indian sex workers case is making the top headline these days. The recent order dated 19-05-2022 given in the case of Budhadev Karmaskar v. State of West Bengal And Ors., popular as the sex workers case the Hon’ble Apex Court has categorically recognized that the basic protection of human decency and dignity under Article 21 of the Constitution of India extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children. Reliance has been placed on the earlier landmark judgments of the Court to emphasize & expound on the scope of the right to life under Article 21. Notably, this is not the first time when the Indian judiciary has held the dignity of the community of sex workers in its ruling. Two years back the Bombay High Court has held that “there is no provision under the law which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution.” A few years back the Delhi High Court also ruled that “simply because the victim worked as a sex worker before the incident in question doesn’t confer any right upon anyone to violate her dignity.”In a significant ruling, the Gujarat High Court has also observed that “Section 370 of the Indian Penal Code will have no application in a case wherein sex workers are engaged in prostitution of their own volition and not according to any inducement, force or coercion.” But the factor that is making the recent Budhadev Karmaskar v. State of West Bengal and Ors. Case super buzzing is the fact that this time the Court has issued significant binding guidelines to ensure that the community is being treated with dignity and not being abused. Further, to understand the depth of the case it is important to know about the history of the case along with some categorical development that has taken place in this case which is summarized right beneath.

BACKGROUND

This case was originally filed as an appeal before the Hon’ble Apex Court against the conviction order given by the Calcutta High Court in a case of the brutal murder of a sex worker living in a red light area in Calcutta in 1999. The factual matrix of the case highlights that the accused battered the head of the deceased again and again in a hideous and barbaric manner leading to putting a period on her breath, thus the Court naturally decided against the accused and the accused chose to file the criminal appeal before the Apex Court. Considering the heinous nature of the alleged crime the Hon’ble Apex Court straightforward dismissed the appeal however it later converted the case into a Public Interest Litigation suo motu by its order dated 14th February 2011 to address the problems of sex workers in the country. In its earlier orders the Bench consisting of Hon’ble Mr Markandey Katju, and Hon’ble Ma’am Gyan Sudha Misra, JJ. equivocally stated that their aim was “to create awareness in the public that sex workers are not bad girls, but they are in this profession due to poverty”. The Bench observed that: “Sex workers are also human beings and no one has a right to assault or murder them. Sex workers are also human beings and no one has a right to assault or murder them. A person becomes a prostitute not because she enjoys it but because of poverty. Society must have sympathy towards the sex workers and must not look down upon them. They are also entitled to a life of dignity given Article 21 of the Constitution.’

REMARK ON PREVIOUS SIGNIFICANT ORDERS

The Apex Court has passed several orders issuing directions to the Central Government and the State Governments in this case. In its very initial order dated February 2014 the Apex Court directed the Central and the State Governments to prepare schemes for rehabilitation all over the country for prostitutes through Social Welfare Boards along with preparing schemes for giving technical/vocational training to them considering their right to live with dignity under Article 21 of the Constitution of India.

Subsequently, by another order, the Court constituted a panel headed by Mr Pradip Ghosh, Senior Advocate as the Chairman to discuss various aspects of the problems relating to sex workers and submit its report. It also directed the States/Union Territories and the Union of India to carry out surveys to ascertain the number of sex workers who want rehabilitation and who would voluntarily continue in the same profession. The Apex Court categorically stated that “it is important to educate the public to present the situation of sex workers in the country in the correct light, as it is ultimately the people of the country, particularly the young people, who by their idealism and patriotism can solve the massive problems of sex workers.”

Thereafter the constituted panel identified three core areas for consideration including prevention of trafficking, rehabilitation of sex workers who wish to quit sex work and conditions conducive for sex workers to live with dignity under the provisions of Article 21 of the Constitution of India and submitted various reports time to time. The Panel subsequently gave many suggestions. The emphasise was given to the point that sex workers face great difficulty in getting ration cards, voter’s identity cards or opening bank accounts thus the authorities should see to it that sex workers do not face these difficulties as they are also citizens of India and have the same fundamental rights as others. The Court confirmed that the suggestions made by the Panel shall be seriously taken into consideration by the Central Government, the State Governments and other authorities and hence all efforts shall be made to implement these suggestions expeditiously. On 14.09.2016 a final report along with recommendations of the Committee was placed on record. Meanwhile, also by its various orders the Court emphasized the gravity of the matter and urged the Government to place the draft legislation before the Parliament at the earliest. In the wake of the Covid-19 outbreak that has caused severe disruption in normal life, it was realized that the class of sex workers fall under the list of vulnerable classes being adversely hit by the pandemic. Thus, the Court issued a direction for the supply of dry rescue so that the sex workers who are in dire straits can be rescued. Similarly, by order dated 10.01.2022, the Court had directed the State Governments/Union Territories to complete the process of issuance of ration cards/voter cards to all sex workers expeditiously.

PECULIARITY OF THE RECENT ORDER

By its very recent order, the Court has taken note of the periodical adjournments so taken by the Union of India in laying down a dedicated Bill. Thus, to fulfil the existing gap in the legal framework exercising its particular powers conferred under Article 142 of the Constitution of India the Court has passed six binding directions to be in force till the legislation finally comes up. Notably, the directions so issued relate only to the rehabilitation measures in respect of sex workers and other connected issues. These directions can be summed up as follows:

Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance and proper medico-legal care.
The State Governments were directed to survey all ITPA Protective Homes so that cases of adult women, who are detained against their will, can be reviewed and processed for release in a time-bound manner.
The police and other law enforcement agencies were directed to be sensitised towards the rights of sex workers and were directed to treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coerce them into any sexual activity.
The Press Council of India was directed to issue appropriate guidelines to protect the identities of sex workers, during arrest, raid and rescue operations. Besides, the strict enforcement of newly introduced Section 354C, IPC which makes voyeurism a criminal offence, was directed to be extended against electronic media as well.
Measures that sex workers employ for their health and safety such as the use of condoms, should neither be construed as offences nor seen as evidence of the commission of an offence.
The Central Government and the State Governments, through National Legal Services Authority, State Legal Services Authority and District Legal Services Authority, are directed to carry out workshops for educating the sex workers about their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/prohibited under the law. It was also directed that the sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.

Notably, it was directed to the State Governments/ UTs to act in strict compliance with the above recommendations made.

HAS THE APEX COURT RECOGNIZED SEX WORK AS A PROFESSION?

The Apex Court in its recent order has categorically held “that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21. The constitutional protection that is given to all individuals in this country shall be kept in mind by the authorities who have a duty under Immoral Traffic (Prevention) Act, 1956”. Now, the controversial question here is whether the use of the term “profession” here implies recognition of sex work as a profession. Notably, the term profession has been used time and again in the earlier order of the Apex Court as well. But this cannot be termed as recognition of sex work as a profession. In this regard, the Court has clarified in one of its orders stating that “this Court should not be perceived to advocate the recognition of sex trade or promote the cause of prostitution in any form and manner.” Reportedly, on this issue, Tripti Tandon, advocate for the Durbar Mahila Samanwaya Committee and Usha Cooperative, which are parties fighting for the rights of sex workers, stated that the order “does not recognise or have the effect of recognising sex work as a ‘profession’”. Here, it needs to be clarified that from one perspective recognition of prostitution as legitimate work reinforces women’s position as subordinate or sexual objects for men. Having said this, one also needs to be mindful of the fact that the judiciary of this Country in a plethora of judgements has affirmed the stand that voluntary sex is not illegal. Thus, no reason exists to regard prostitutes as criminals and maltreat them.

THE WAY AHEAD

Notably, the matter is yet pending before the Hon’ble Apex Court and is listed on 27.07.2022. The Court has strictly directed that the Union of India file its response to the recommendations made by the panel within six weeks. Let us hope that the Government come up with some positive response and the class of sex-worker get dedicated legislation for the protection of their life and dignity super soon. May the current discussion of the law eliminate the moral hypocrisy and class discrimination surrounding the class of sex workers.

08/12/2024 0 comments 22 views

‘Skin-To-Skin Contact Not Necessary To Prove Sexual Assault’ Under POSCO, SC Sets Aside Bombay HC’s Bizarre And Controversial Judgement

by Guest Author 08/12/2024

written by Guest Author

By Neha Bhupathiraju

Case: Attorney General for India v. Satish and Anr

Bench: Bela M. Trivedi. J, Uday Umesh Lalit. J, S Ravindra Bhat. J

The Apex Court set aside a Bombay HC judgement which held in January this year that skin-to-skin contact is necessary to claim sexual assault under the Protection of Children from Sexual Offences 2012 (POSCO). The SC’s latest judgement is trivial to the rights of minors, whose cases of sexual assault are already severely under-reoprted.

The Single Judge Bench at the Bombay HC had to decide whether attempting to remove the salwar and touching the breast of a 12yr old comes within the meaning of sexual assault under Sections 7 and 8 of the POSCO Act. The accused took the minor girl into his house on the pretext of giving her guava, and attempted to remove her clothes and touched her breast. The minor’s mother found her daughter locked inside the accused’s house, and she soon filed an FIR. A witness also heard the minor yell for her mother.

The Bombay HC earlier noted that “...in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’….as such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration.” This verdict was heavily criticized, and rightly so, for it tries to instill sexual assault to a box – that you can only be assaulted in one manner, and not in any other.

Senior Advocate Karuna Nundy said that “the judge said that because the sentence was too high, she felt that the crime should be interpreted in such a way that somehow the accused would then get a lower sentence…(in doing so) the judge did violence to the statute and basically made a whole slew of crimes under POCSO legal”. While expressing disappointment, Senior Advocate Rebecca John said “When you use logic that is questionable and when you use language that is highly avoidable, then it has a ripple effect, because it actually gives a message of sorts to society and the subordinate courts, that this is the way you should appreciate evidence……that, to me, is very problematic.” Attorney General Venugopal noted that the judgement set a dangerous precedent, creating a “devastating effect on pending cases before subordinate courts.”

Saying that skin-to-skin contact is necessary to prove sexual assault completely invalidates the minor’s experience. The provision says “whoever touches”, and pressing the breast passes that test. To interpret physical contact as skin-to-skin contact is outside the intent of the law. It also has a devastating impact on minor boys, as the accused can now roam scot free. While the Bombay court held that it amounts to outraging the modesty of a woman, the apprehension that comes from a grown man trying to undress you and touch you with ghastly sexual intent comes nowhere close to that. This analogy is from the same family as somebody trying to define how a sexual assault or rape victim can behave, that there is an ideal behaviour that such victims must adhere to, and if you don’t meet them, then you weren’t probably violated (enough).

Chairperson of the National Commission for Protection of Child Rights, Priyank Kanoongo, had written to the Maharashtra government to appeal the judgement. Soon the SC stayed the Bombay court’s verdict, after hearing separate pleas filed by Attorney General, National Commission for Women and Maharashtra Government.

The SC criticized the Bombay verdict and held that restricting the definitions of such terms would lead to absurd results, also defying the legislative intent of protecting children from sexual offences. It held “...if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act, inasmuch as in that case touching the sexual or non-sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent would not amount to an offence of sexual assault under Section 7 of the POCSO Act. The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child.” The Court convicted the accused to three years rigorous imprisonment with a fine of INR 500.

Sexual offences amongst children are generally underreported. In majority of the cases, the children’s offenders are known to them: they’re either family, a neighbor or acquaintance. Many might not be able to differentiate between good or bad touch, and even if they do report it to someone, there is a high chance their story is brushed under the rug – only for the child to recover from it years later. The National Crime Record Bureau found that at least 109 children were assaulted everyday when it recorded 1,41, 674 cases in 2018. An alarming study found that every second child is exposed to such abuse, and one amongst five face critical forms of it. The SC’s verdict is a step in the right direction under such dire circumstances.

08/12/2024 0 comments 26 views

Marital Rape: A Social and Legal Paradox

by Guest Author 08/12/2024

written by Guest Author

By Vandana Bharti

Despite 75 years of independence, the social status of women in India still stands in shadows. Grievous crimes and alarming rates of pending cases portray the loopholes in the legal machinery of the Indian legal system. One such appalling act is that of Rape – where the dignity and self-respect of a woman is bruised beyond contemplation. When such an act occurs behind four-walls in a matrimonial home, it is known as Marital Rape. Where the spouse engages with his/her better half in a forceful, non-consensual sex it is termed as Marital Rape.

A legally sanctioned contract between a man and a woman forms marriage. In India, the legality of sexual intercourse between a man and a woman gives the husband leverage to consider the consent of his wife perpetual in the course of marriage.

Indian Legislation On The Offence Of Rape:

Section 375 of the Indian Penal Code (IPC) states – A man has committed rape if he had sexual intercourse with a woman against her will, without her consent, with her consent but by putting her in danger or threatening her, with her consent whom she believes that she was lawfully wedded to, with her consent but the consent was given in an unconscious state, and with her consent when she is under 15 years of age. Nowhere does this specify the essential elements and the repercussions of committing marital rape.

As per Indian Penal Code, husband can be convicted on grounds of marital rape only when:

The wife is 15 years of age or below; and is punishable by imprisonment for up to 2 years or fine, or both.
When the wife is below 12 years of age, offence punishable with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine.
Rape of a judicially separated wife, offence punishable with imprisonment up to 2 years and fine.
Rape of wife of above 15 years in age is not punishable.

Precedents In the Law

In the Harvinder Kaur v. Harmandar Singh case (AIR 1984 Delhi 66 ), the Delhi High Court stated that the interference of the Constitution in household matters would destroy the marriage.

The court stated, “In the privacy of the home and the married life neither Article 21 [No person shall be deprived of his life or personal liberty except according to a procedure established by law] nor Article 14 [The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India] have any place.”

In 2019, while introducing the ‘The Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018’ Shashi Tharoor, Member of Parliament in the Lok Sabha, said, “‘Marital rape is not about sex, but about violence; it is not about marriage, but about lack of consent.”

Naval Rahul Shiralkar, Advocate at High Court of Bombay Judicature at Nagpur, said, “Courts have various methods to identify marital rape and have given strict punishments but due to the lack of a law against a crime like that, the judiciary is bound to not admit ‘forceful intercourse by a man upon his wife’ as marital rape.”

Shiralkar said that many of the marital rape cases went unreported in India. He added, “There are at least 5-6 cases reported every year in Nagpur Family Court which are pending litigation.”

Saranya S. Hegde, President of the Mahila Dakshata Samiti, Bangalore, said that husbands often thought that they could do everything with their wives because society and marital laws supported that. “The helpless and dependent suffer in silence.”

Hegde said, “If a woman goes to a [family] court, the judge often favours the husband and asks the wife to adjust.” In her more than 15 years of experience, Hegde said she had seen women committing suicide due to the mental torture they went through because of marital rapes and domestic violence.

Kamlesh Premi, Counsellor at home at the Centre for Social Research, said the court procedures took almost five or seven years. Having been a counsellor for more than 20 years, Premi said that the judiciary system was too lengthy.

First, the woman has to complain to the Crime against Women Cell and get counselled. Then if she wants, she has to file an FIR (First Information Report) under Section 498 (A) (Husband or relative of husband of a woman subjecting her to cruelty) of the IPC, which in itself is quite a lengthy procedure. And at the end, even after an investment of at least five years and financial resources, the court would either ask her to adjust or maybe get her a divorce with maintenance. Hence, a lot of women compromise or either go for mutual divorce. “Therefore, there is a lot of under-reportage for marital rapes,” she added.

“It is in rare cases that a wife asks for a divorce or maintenance,” Premi said. “The biggest problem is that the husbands treat wives as private property. They think they own her.”

Dr. Ratna Purwar, a gynaecologist in Lucknow, said women often complain about the presence of vaginal or anal wounds in such severity that could substantiate rape. She added that, when men are asked to abstain from forceful sex with their spouse, the most common answer is, “Why did I marry her then?”

The financial dependency of women becomes a prime reason for all the physical and verbal abuse endurance. It had become normal despite the mental health depletion and trauma. Marriages in India have the concept of ‘implicit consent’ to sex and women sadly or happily comply and do not report it.

In the Anuja Kapur vs Union of India Through Secretary case of 2019 (W.P. (C) – 258/2017) , a PIL was filed asking the Delhi High Court to make guidelines and laws on marital rape. The court replied that drafting of the laws was the work of the legislature and not the judiciary. “The court is more concerned with the interpretation of the law rather than the drafting of laws.”

In the Nimeshbhai Bharat Bhai Desai vs. State of Gujrat case of 2018 (2018 SCC OnLine Guj 732), the Gujarat High Court admitted that marital rape was not just a concept and the notion of ‘implied consent’ in marriage should be dropped. The law must protect bodily autonomy of every woman (married or unmarried).

However, in Independent Thought vs Union of India on October 11, 2017, the Supreme Court stated that sexual intercourse with a girl, below 18 years of age, was rape regardless of her marital status.

Supreme Court of India, in the case of Independent Thought v. Union of India (2017) 10 SCC 800, read down Exception 2 to Section 375, IPC as being violative of Article 14 and 21 of Indian Constitution.

In 2017, the Daily reported a 2014 study by International Centre for Research on Women and United Nations Population Fund on 9,500 respondents in seven states of India. The report concluded that 17% of women received spousal violence while 31% (one in three) men admitted to committing sexual violence against their wives.

In 2016, Maneka Gandhi, then minister for child and women development, said that the ‘concept of marital rape’ that was understood internationally could not be applied to India considering the levels of illiteracy and poverty.

In 2016, the U.N. Committee on Elimination of Discrimination Against Women recommended that marital rape be criminalized in India. After that recommendation, a question was raised in the upper house of Parliament asking what action had been taken. Haribhai Parathibhai Chaudhary, then minister of state for home, replied, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament.” This response was repeated literally by Minister Gandhi in the Parliament.

In the year 2015, the RIT Foundation filed a Public Interest Litigation in the Delhi High Court challenging the exemption of marital rape in Section 375 of the IPC. The challenge is on the basis of Article 14, Article 15 (a fundamental right prohibits discrimination by the state against any citizen on grounds ‘only’ of religion, caste, race, sex, and place of birth), Article 19 (freedom of speech which is the right to express one’s opinion freely without any fear through oral/ written/ electronic/ broadcasting/ press), and Article 21 of the Indian constitution.

Justice Verma Committee report (2013) recommended the discarding of the exception of marital rape. Providentially, in November 2017 a division bench of the

The Law Commission of India in its 172nd Report considered the issue of marital rape, but chose to ignore the voices that demanded the deletion of Exception 2 to s. 375 IPC on the ground that “it may lead to excessive interference with marital relationship” and may destroy the institution of marriage.

In the 42^nd report by the Law Commission, it was proposed that criminal liability be attached to the intercourse of a spouse with his/her minor husband/wife. But the committee banished the recommendation stating that the sexual intercourse between a man and a woman can never impose criminal liability on the husband as sex is the parcel in a marriage.

The Supreme Court, while deciding the issue of marital rape of girls below the age of 18 years, made certain observations and comments that are equally applicable and relevant to married women over 18 years of age.

One of the foremost issues is that of the right to bodily integrity and reproductive rights. While referring to various precedents, the Court found that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as under Article 21 of the Constitution. This right, in effect, would include a woman’s right to refuse participation in sexual activity.

The Supreme Court also noted views expressed by the Justice (Retd.) JS Verma Committee, where reference was made to a decision of the European Commission of Human Rights which concluded that a rapist remains a “rapist regardless of his relationship with the victim”.

According to the 2015-16 National Family Health Survey (NFHS-4), 31% of married women have experienced violence – physical or sexual. The NFHS reported that about 4% of women were forced to have sexual intercourse when they did not want to, 2.1% to perform sexual acts they did not want to, and 3% were threatened to perform sexual acts they did not want to.

In 2015, two separate pleas were submitted to the Supreme Court asking for the law to be amended by deleting the marital rape exception. In the first, the petitioner, a 28-year-old, had already filed charges against her husband for domestic violence (a civil, not criminal offense) as well as “cruelty.” She used her maiden name, Reema Gaur, to shield her identity.

She wanted to bring him to justice for repeatedly raping her. “The law as it stands today amounts to a state-sanctioned license granted to the husband to violate the sexual autonomy of his own lawfully wedded wife,” the plea stated.

Appearing on TV, heavily veiled, wearing spectacles that magnified her eyes, Gaur talked about her marriage. “Every night post the wedding was a nightmare for me. … He would never even ask my permission,” she said. “He used to beat me up, insert artificial [objects] in me. At some point I was in such a condition I was not even able to walk,” she said, her voice breaking with tears. On the night she decided to leave, she said, “He hit me 18 times on my head with a box and a torchlight. And then he inserted the torchlight in my vagina.“

Bleeding and in a semiconscious state, she called her mother for rescue. The bleeding lasted for two months. In the year she was married, when Gaur tried to talk to her in-laws and her parents, “The only thing they told me is, ‘Try to adjust.’ “

In 2014, Akash Gupta of the Rice Institute, a non-profit organisation reported, that the number of spousal violence received by the wives was 40 times more than that received by non-intimate partners.

Deepika Narayan Bharadwaj, a film maker and activist believe the state does not have the potency to support women if they are to seek divorce on grounds of marital rape. “It’s naive to say women have complete right of consent and rights over their body, when the truth is they’re dependent on their husbands for everything, financially, emotionally,” says Bhardwaj.

Trisha Shetty, founder of She Says, a website for information and action on sexual crimes against women argues that protection from Marital Rape is not a western issue that needs solving rather it is a basic human right. People in India are of the opinion that sexual abuse and marital rape only happens to the poor, the fallacy needs to be broken. “That whole assumption that you’re making laws for people who don’t understand is nonsense. Everyone understands the concept of consent, of saying, ‘No.’” says Trisha.

She Says and several NGOs, including Jagori (which in Hindi means “awaken, women!”), have organized workshops and other programs to help women speak out about the sexual abuse and rape. Online, there are additional resources, such as this Marathi language effort to educate about consent via two folk dancers having a musical discussion about the meaning of “yes” and “no.” The government has even set up an emergency hotline, staffed by women, to field calls from women who need police assistance as well as resources and instruction about their rights. In their first year, they received more than 600,000 calls from women, some describing assault and rape within their marriage.

Judicial Stand

In Bhodhisathwa Gautam v Subhra Chakraborthy (1996 AIR 922) it was held that marital rape is violative of Article 21; Right to live with human dignity. Supreme Court held that Rape is a crime against basic human rights and is also violative of victim’s most cherished of the fundamental right. A married woman too has the right to live in human dignity, right to privacy and rights over her own body. Marriage can in no way take away these rights.

In Justice K.S Puttaswamy v Union of India (2017) 10 SCC 1 , it was held that the right to privacy as a fundamental right includes decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.

Uncovering the history of judicial decisions on infliction of serious injury by the husband on the wife the court in Queen Empress v Haree Mythee, (1891) ILR 18 Cal 49 observed that in case of married women, the law of rape does not apply between a couple after the age of the wife over 15 years of age, even if the wife is over the age of 15, the husband has no right to disdain her physical safety.

In Emperor v Shahu Mehrab (1911) ILR 38 Cal 96 the husband was convicted under Section 304A IPC for causing the death of his child-wife by rash or negligent act of sexual intercourse with her.

In State of Maharashtra v Madhukar Narayan Mardikar, AIR 1991 SC 207, Supreme Court referred to the right to privacy over one’s body. It was decided that a prostitute had the right to refuse sexual intercourse. It is wistful to know that all sexual offences committed by a non-intimate or a stranger have been penalised and all females except wives have been granted their right over their bodies.

In Sree Kumar v Pearly Karun, 1999 (2) ALT Cri 77 High Court observed that because the wife is living under the same roof with that of her husband, with no decree of separation, even if she is subjected to consensual or non-consensual sexual intercourse, the offence under Section 376A of IPC will not be imposed.

The idea of spousal rape is fictious to the Indian Judiciary, despite the mental and physical trauma of the survivor.

International Statistics

Marital Rape has been declared illegal and a criminal offence in 18 American states, 3 Australian states, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. A U.K. case of R v R changed the law to an extent that the courts ruled that even within a marriage, any non-consensual sexual activity is rape.

What can be done?

To help the victim surf the trauma, shelters can be provided as a temporary safe place to stay and the staff may help in the consideration of options available, legal aid services to offer free of cost legal services and advice, support groups to help the victim voice the upheaval. Articulate support for the enforcement of apt laws and for new legislation to curb sexual violence, education programmes and support initiatives at local, state and national level.

Conclusion:

The incessant exemption of marital rape from the ambit of criminal law succours the idea of wife being the property of the husband exclusively. Changing the laws on sexual offences needs to be tactful especially in a country like India where there is an existence of diverse and conglomerate personal and religious laws that might clash with the new amendments in the statutory criminal law. The immediate need of prohibiting and criminalizing marital rape is just not enough. Sensitization of judiciary and police along with educating the myriad believers of the airy concept of marital rape is required in order to acknowledge that the concept of spousal rape; getting raped by one’s spouse is not trivial, and definitely cannot go unpunished.

08/12/2024 0 comments 27 views

Dereliction Of The ‘Other Gender’: Deprivation Of Minor Male Sexual Assault Victims By The ‘Skin-Touch’ Doctrine

by Guest Author 08/12/2024

written by Guest Author

By Sayan Dasgupta

COVID-19 has been a fertile spawning field of sexual violence. Where some Courts have been deontological and acknowledging of this phenomenon, certain judgments act as a means of disenfranchisement of sexual violence victims. Bombay High Court in a recent judgment, in Satish v. State of Maharashtra has rendered an absurd interpretation of Protection of Children from Sexual Offences Act, 2012 [POCSO]. The accused was charged with Section 8 of POCSO read with Section 354 of Indian Penal Code along with Sections 342 and 363, for sexually assaulting a minor girl. The Bench acquitted the accused of sexual assault under POCSO while upholding conviction under the sexual assault charges under IPC on the rationale that there was lack of sexual intention on the part of accused to sexually assault the minor since there “was no direct physical contact, i.e., skin to skin” touch.

This verdict caused a huge uproar in the civil society and the legal fraternity alike causing the Supreme Court to stay the acquittal of the accused on the charge of Section 8 of POCSO. The judgment has rendered that mere groping would not amount to sexual assault under Section 7 of POCSO. Such an abhorrent interpretation prima facie trivializes not only sexual assault of female minors, but disproportionately excludes male minors from seeking justice.

The minor male victims of sexual abuse constitute a large majority in India. The Bench elucidated that mere groping over the clothes of the minor would not amount to sexual assault under Section 7 and 8 of POCSO. POCSO is inherently a gender-neutral legislation providing reprieve to minors of all genders. Section 7 provides that “whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.” The words “penis, anus” annotate protection to the male victims from sexual assault. However, the case establishing the ‘skin-touch’ doctrine has significantly narrowed the scope of application of the provision.

Adoption of this exclusionary doctrine would impact both female and male victims adversely, however, where the female victim could resort to relevant provisions of IPC, the male victim is left remediless. The provisions of sexual crimes under IPC are highly gendered protecting only the woman or the girl child disenfranchising the male victims of sexual violence. Furthermore, the doctrine places the onus of proof on the prosecution per contra to POCSO. Section 29 of POCSO reverses the burden of proof and presumes the offence has been committed or abetted by the accused. If the view purported by the Bombay High Court is considered, and if the prosecution fails to satisfy the onus, the female victim can have a recourse to relevant provisions of IPC, whereas on the contrary, the male victim cannot.

The ‘skin-touch’ doctrine categorically contradicts the Model Guidelines issued by Ministry of Women and Child Development under Section 39 of POCSO which provides that “almost every known form of sexual abuse against children as punishable”. Furthermore, the Delhi High Court in Rakesh v. State without even delving into the detail of disrobing of the victim dismissed the appeal holding that mere groping of the private parts of the victim with sexual intent amounts to sexual assault under Section 7 of POCSO. Conflicting this accurate interpretation, the heavy onus placed on the victim results in narrow application. Whereupon the female victims have an alternative remedy, the abusers of the male victim are left scot-free on committing the atrocity leaving a permanent scar on the well-being of the child survivor. Ergo, mere groping would amount to sexual assault of the female victim under Section 354 of IPC but would not be sexual assault of male victim, either under POCSO or IPC. The provisions governing sexual crimes in IPC are gynocentric and neither the legislative or the judiciary have displayed any intention to take affirmative step on making the sexual offences gender neutral, despite there being categorical recommendation by the 172^nd Law Commission Report and the Justice Verma Committee Report to make rape and other sexual offences gender neutral.

This inspires little to no confidence on the state functionaries with regard to gender justice. The ‘skin-touch’ doctrine creates a very real and alienating affect of male survivors wherein, groping over clothes would not amount to sexual assault. The lack of gender-neutral sexual offence laws and such interpretation is a clear dereliction of the male survivors.

08/12/2024 0 comments 27 views

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