The Notion of Rape: A Pre-Determined Verdict?

 

Disclaimer: This is solely an opinion piece. The writer in no way doubts the capabilities of the honorable courts of India, nor does it question the caliber of the judicial bench involved. The opinions expressed in this article are solely towards this particular case and is requested not to be made a general assumption.

 

The concerned case heard by the Indore bench involves the punishable criminal offense listed under Section 376 and 366 of the Indian Penal Code (IPC). To put it simply, the case has been filed by the complainant, a 21-year-old Muslim woman against the defendant, a Hindu man under the charges of rape.

 

The complainant was in a relationship with the accused for three years. On 1st June, when she found out that the accused man’s marriage had been fixed elsewhere, she tried to commit suicide. Fortunately, she survived, and in her subsequent statement to the police, she disclosed details regarding her relationship with the accused. Belonging to different religious communities, both families had opposed to their relationship, and the defendant refused to marry the complainant. Due to this, she claimed to have been repeatedly raped by the accused since October 2018 on the pretext of marriage.

 

The defense counsel, in response, claimed that the woman had entered into a relationship with the accused at her own free will as she was 21 years of age. Without a lack of consent on the complainant’s part, the charges for Section 375 – sexual assault, and its subsequent punishment terms listed in Section 376 would not sustain in court. The defendant also claimed, that the woman had lodged a false case after their broken relationship under the probable pressure from her family.

 

Following this, when the defense counsel appealed for bail, the court rejected its plea, deeming their submitted arguments as ‘unfit’. Instead, they were of the belief that the defendant was well aware of the tensions associated with their religions and yet chose to enter into a physical relationship with the complainant, thus deceiving her. Moreover, the court observed that in the majority of cases, defense contends the complainant to be a consenting party. Since it is difficult to prove the existence of or the lack of consent, the court ruled in favor of the woman to avoid a benefit of doubt to the accused.

 

The Bench of Justice Subodh Abhyankar opined, “India are a conservative society, it has not reached a level of civilization where unmarried girls, regardless of their religion, indulge in carnal activities with boys just for the fun of it, unless the same is backed by some future promise/assurance of marriage.”

 

The court further added "It is the girl who is always at the receiving end because it is she who runs the risk of being pregnant and also her ignominy in society, if her relationship is disclosed. You cannot just plead consent on the part of the prosecutrix and laugh all the way to your home."

The court’s decision on the defendant’s bail request is not as alarming as its justification.

 

Firstly, the justification given by the court holds more moral relevance than legal basis. The favor towards the concerned victim in this case is due to a general woman’s risk of becoming pregnant and the subsequent repercussions in Indian society. However, the court does not refer to a specific legal provision that could act as a defense for the complainant against the accused’s arguments. Agreed, laws are made keeping contextual moral values in mind; however, the latter cannot overpower the former, especially in court. The legal basis of this case stands on the charge of rape, derived from Section 375 IPC – sexual assault. Therefore, defense arguments for the complainant, even in the panel’s observation, should be made using solid evidence. In this case, it insinuates consent on the woman’s part.

 

This brings me to my second point. Justice Subodh Abhyankar decided to speak for all women in India when he refuted the possibility of the complainant being at fault. The court used her attempt at suicide as proof of how reliant the complainant was on the marriage proposal, without which she seemingly would not have consented. The general representation made by the court to justify the complainant’s position was not only legally unfit, but incorrect too.

 

Justice Subodh Abhyankar seems to believe in a representation of India that arguably no longer exists. He claims with conviction that Indian women are conservative enough to not indulge in acts of physical intimacy unless they are promised of marriage in the future. However, in a survey conducted by SheThePeople in 2020, 70% of the sample 75 women were not virgins, in which the average age they first got physically intimate was 19. India has seen a gradual shift in mentality over the last decade, where women no longer carry the tag of virginity being a symbol of virtue. This may be a more prevalent notion in metropolitan cities than in rural ones. Which is why a simple survey, or a few articles cannot speak for all women in India. Neither can Justice Subodh Abhyankar’s claim.

 

The bench applied a general assumption to the complainant’s claim. A similar assumption could be applied to the defendant too. If the court believes that the man had always been aware of the tensions associated with the idea of their marriage, the woman could reasonably be perceived as aware too. Issues concerning interfaith marriage aren’t unknown to anybody. There is a chance the accused did not predict a stern rejection to his relationship from their families. There is also a possibility that the marriage fixed elsewhere was out of his control.

 

If according to the bench, the woman concerned was deeply involved in their relationship from the way she attempted suicide post their fallout, then the case facts also suggest that the man was equally involved. A man, who would only be looking for a casual, fun physical relationship, would not have engaged in a three-year long relationship. The assumptions given by the Madhya Pradesh court, when differently analyzed, do not only victimize the woman, but the man as well.

 

Yet a legal victim can only sustain when there lies a lack of consent. This is yet to be proven in court.

 

The law on sexual offenses was established for the protection of women. However, a general trend in cases like these cannot pre-determine the outcome of every case on forth, as followed by the Indore bench in this case. Men can’t be pre-determined as wrongdoers. Women can’t be pre-determined as victims.

 

Individuals deserve justice, but not from the benefit of general assumptions.