05 Chapterj

SEXUAL VIOLENCE AGAINST WOMEN WITH SPECIAL
REFERENCE TO RAPE :
VICTIMIZATION AND JUDICIAL APPROACH IN INDIA
THESIS SUBMITTED FOR THE AWARD OF

THE DEGREE OF
DOCTOR OF PHILOSOPHY
IN LAW
(2012)
By
SONIA ANEJA
DEPARTMENT OF LAW
UNIVERSITY OF JAMMU
JAMMU-180006
CERTIFICATE
This is to certify that Miss SONIA ANEJA has worked

under the supervision of the undersigned. This is further
certified that
i) That the work embodies the work of the candidate;
ii) That the candidate has worked under us for the
period required under Statutes;
iii) That the candidate has put in the required
attendance in the department;
iv) That the thesis presented is worthy of consideration
for the award of Ph.D Degree;
v) That the candidate has incorporated the suggestions
emanated from the seminar;
vi) The work prepared in this thesis is original and has
not been submitted either in full or part to any
institution.
Prof. Lalita Parihar
Dr.Sanjay Gupta
(Supervisors)
CONTENTS
Acknowledgement I-II
List of Abbreviation III-IV
List of Cases V-VIII
CHAPTER I 1-40
INTRODUCTION
1. Concept of Sexual Violence 1
2. Determinants of Sexual Violence 7
3. Impact of Sexual Violence 10
4. Forms of Sexual Violence 12
a) Rape : Concept 12
Reaction to Rape 14
Misconception about Rape 20
Myths about Rape 20
Motivation for Rape 21

Types of Rape 25
Typology of Rapists 26
Types of Relationship between Rapists and Victim 29
b)Sexual Harassment: Concept 31
Molestation 32
Eve-Teasing 33
5. Methodology 35
6. Objectives 35
7. Outlines of the Contents of the Chapters 36
CHAPTER -II 41-60
HISTORICAL PERSPECTIVE OF RAPE
Concept under Hinduism 41
Concept under Islam 49

CHAPTER-III 61-116
RAPE: LEGISLATIVE DEVELOPMENTS IN INDIA
Perception Of Macaulay
s Commission 61
Law Since Independence 67
The Impact of Mathura case, Campaign for 71
Amendments and the 84th Law Commission Report
The bill of 1980, Joint Parliamentary Committee 79
Report of 1982 and the Amendment Act of 1983.
The Existing Law 82
Ingredients of Rape 84
Criminal Law (Amendment) Act, 1983 97
The Suggestions Proposed by the Law Commission of India 100
Code of Criminal Procedure (Amendment) Act, 2005 106
Code of Criminal Procedure (Amendment) Act, 2008 111
The Draft Criminal Law (Amendment) bill, 2010 113
The Draft Criminal Law (Amendment) bill 2012 115

CHAPTER- IV 117-186
ISSUES CONCERNING RAPE: A CRITICAL COMPARATIVE

ANALYSIS
1. Issues Relating to Conceptualization of Rape 121
Classification of offence: Rape - Sexual Offence or Assault? 121
Sexist Bias Against The Victim 126
a)Woman as a liar - False Accusations of Rape 128
b)Woman As a Temptress Victim Precipitated Rape 134
Genital Penetration v. Digital Rape 138
The Spousal Exception Clause Marital Rape 144
2. Issues Relating to the Trial of Rape 150

Consent of the Victim 150
The Corroboration Requirement 166
Past Sexual History of the Victim 171
Conducting the Trial and Publicity during the Trial 178
Medical Examination of the Victim 184

CHAPTER V 187-240
RAPE: JUDICIAL APPROACH IN INDIA
Analysis of Supreme Court Cases 187
CHAPTER VI 241-274
CONCLUSION AND SUGGESTIONS
Special Legislation 256
Classification of Rape 257
Redefinig Rape 259
Age of consent 261
Essential of Corroboration 262
Political Sensitivity 263
Victim Caring Investigation and Trial procedure 264
Training Programmes and Special Courts 266
Judicial Sensitivity 267

Rape Crisis Centres 269
Sentencing 270
Compensation and Rehabilitation 271
Media Sensitivity 272
BIBLIOGRAPHY 275-318
ACKNOWLEDGEMENT
On occasion of submission of this thesis, first of all I humbly

offer my reverence to ALMIGHTY, the Master of Universe, with
whose blessings, it was possible for me to complete this research.
I am thankful to Prof. Kulwant Singh, Head and Dean,

Department of Law for allowing me to work on this topic.
I am placing high regards for my supervisors, Prof. Lalita

Parihar and Dr. Sanjay Gupta, Associate Professor, Department
of Law, who inspired me to work on this topic and
magnanimously contributed in masterly manner towards the
accomplishment of this work.
I have no words to acknowledge my indebtedness to my

Parents, brother for their sacrifices, constant support, abiding
faith and love which decisively helped me to undertake this
academic journey.
I further express a deep sense of gratitude to Mr. Sajid

Sheikh for giving final touch to this work with keen interest and
expertise.
I am equally grateful to all my friends, who stood by me in
all moments and encouraged me to complete my task.
Thanks are also due to the Library staff of all universities

for their cooperation extended to me during the present research
work.
(SONIA ANEJA)
LIST OF CASES
Abbas Ahmed Choudhary v. State of Assam, (2010) 2 CrL J 2060 (SC)
Abdul v. Emperor, AIR 1932 All 580
Apparel Export Promotion Council v. A.K. Chopra, 1999 1 SCC 759
Arjan Ram v. The State , AIR 1960 Punj 303
Balwant Singh and others v. State of Punjab, AIR 1987 SC 1080.
Bhimrao Harnooji Wanjari v. State of Maharashtra, 1975 Mah. LI

660
Bharat v. State of M.P, AIR 1992 SC 880
Bodhi Sattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922
Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753

C
Chammudin Sardar v. Emperor, AIR 1936 Cal.

Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988
Daler Singh v. State of Haryana, 1995 Cri L.1 614 (P & H)
Delhi domestic working women

s forum v. Union of India,
(1995)1SCC14
Dhananjoy chatterjee v. State of West Bengal, 1994(2)SCC 220
D.P.P. v. Morgan, [1976] A.C. 182
Emperor v. Mahadeo Tatya, AIR 1942 Born. 121
Emperor v. Nur Ahmed, AIR 1934 Cal. 7
Gagan Bihari Sonal v. State of Orrisa, AIR 1992 SC 72
Gopi Shanker v. State of Rajasthan, AIR 1953 Ajmer 12
Gopi Shankar v. State, AIR 1967 Raj. 159
Gurcharan Singh v. State of Haryana, AIR 1972 SC 2661

H
Harpal Singh and another v. State of Himachal Pradesh, AIR1981 SC

361
Holman v. The Queen, (1970) WAR 2
Ibrahim v. Emperor, AIR 1927 Lah 772(2)
Jalal v. Emperor, AIR 1930 Lah 193(1)
Jaswant Singh v. State of Punjab,( 2010) 1 Cr L J 41(SC)
Jayanti Rani Panda v. State of W.B. and another, 1984 Cr LJ 1535

(Cal.)
Khalillur Rehman v. State, 1859 Cr LJ 698
Kartic Kundev v. State,1967 Cr LJ 1411
3
Krishanlal v. State of Haryana, AIR 1980 SC 1252
Madan Gopal Kakkad v. Nawal Dubey, 1992 (3) SCC 204
Mahla Ram v. The Crown, AIR 1924 Lah 669
Muhammad Afzal and another v. The Crown, AIR 1950 Lah.151
Nazir Ahmed v. State of Jammu and Kashmir, 2008 CrLJ 2628 (SC).
Neel Kumar v. State Of Haryana, (2012) 5 SCC 766
Nura v. Rex, AIR 1949 All 710
P. Rathinam v. State of Gujarat, 1993(2)SCALE 631
Phul Singh v. State of Haryana, AIR 1980 SC 249
Pratap Mishra v. State of Orissa, AIR 1977 SC 1307
Pramod Mahto v. State of Bihar, AIR 1989 SC 1475
Prem Chand v. State of Haryana, AIR 1989 SC 937

Q
Queen v. Clarence, (1888) 22 QBD 23
Queen Empress V. Haree Mohan Mythee, ILR 1891 Cal 49
R. v. Allen, (1989) 9
R. v. Mayers, (1872) 12 Cox 311
R. v. Young, (1878) 14 Cox 114.
R. v. Fletcher, (1859) 8 Cox 131
R. v. Press, (1867) 10 Cox 635
R. v. Baratt, (1873) LR 2 CCR 81
R. v. Ryan, (1846) 2 Cox 115
R. v. Camplin, (1845) 1 Cox 220
R. v. Ryan, (1846) 2 Cox 115.
Rahimbeg and Mahadeo v. State of U.P., AIR 1973 SC 343.

Rajput Bhima Karasan v. The kutch Government, Bhuj, AIR 1950 Kut
9.
Rafiq v. State of UP, 1980 Cri U 1344 (SC).
5
Rameshwar v. State of Rajasthan, AIR 1952 SC 54.
Rao Hari Narayan Singh v. State, 1958 Cr L J 563.
Rao Harnarain Singh v. State, AIR 1958 Punj 123
Ranbirarayan Das v. State, 1992 Cr L J 269 Orissa.
Ramroop Das v. State, 1993 Cri. LT 1000 (Ori).
re, Anthony 1960 Cr LJ 927.
Saroj Rani v. Sudarshan Kumar, AIR 1984 SC 1562
Sanya alias Sanyasi Challan Seth V. State of Orissa, 1993 CrLJ Ori
2784
Saudagar Singh v. State of Punjab, AIR 1987 SC 1080.
State of A. P. v. Gangula Satya Murthy, AIR 1997 SC 1588.
State Government of NCT of Delhi v. Sunil, 88(2000)DLT 630 (SC)
State of Haryana v. Prem Chand and others, AIR 1990 SC 538
State of Karnataka v. Mahabaleshwar Gourya Naik, AIR 1992 SC

2043.
State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990

SC 658
State of Maharashtra v. Subhash Sitaram Sangare, 2001 Cr L J
4468.
State of Maharashtra v. Madhukar Narayan Mardikar, AIR 1991 SC

207
State of Punjab v. Gurmit Singh, AIR 1996 SC 1393.
State of H.P. v. Mango Ram, (2000) 7 SCC 224
State of Rajasthan v. Ram Narain, 1996(2) SCALE 34.

State of Rajasthan v. Madan Singh,2008 CrLJ 1939 (SC).
State of U.P. v. Pappu @yunus and another, AIR 2005 SC 1248
Sudesh Jhaku v. K.C.J, 1998 Cr LJ 2428 (Del.).
Surjan v. State of MP, AIR 2002 SC 476
Surendra Nath v. Emperor, AIR 1933 Cal. 833
Sideshwar Ganguly v. State of W.B, AIR 1958 SC 143
Sheikh Zakir v. State of Bihar, AIR 1983 SC 911.
State of Rajasthan v. Shri Narayan, AIR 1992 SC 2003
Sridher Bindani v. State of Orissa, 1988 Cri. 1022 (Ori.).
7
T. Sareetha v. Venkata Subbiah, AIR 1983 AP 356
Tuka Ram V. State of Maharashtra, AIR 1979 SC 185.
Tulshidas Kanolkar v. State of Goa, (2003) 8 SCC 590.
Uday v. State of Karnataka, 2003 Cr LJ 1539 .
Vijayan Pillai alias Babu v. State of Kerela, 1989 Cri LJ NOC 202
(Ker.).
Vishakha v. State of Rajasthan, AIR 1997 SC 3011.
Vinod kumar v. State of M.P, 1987 Cr L J 1541.

9
INTRODUCTION
The oriental tradition of India preaches MAATRI DEVO BHAVA

which means worship thy mother; and women should be honoured with great
reverence like goddess. India has different and distinct culture and moral
values from its western counterparts. The history of Sociology has however
established that,
FORTITUDE THY NAME IS WOMEN;
SELF- SACRIFICE THY NAME IS TENACITY AND
SUCCESSFUL PURSUIT, THY NAME IS WOMEN
History attests that man has subjected women to his will, used her as a
means to promote his self gratification, to minstrel to his sensual pleasure, as
an instrument in promoting his comfort, but never he has desired to elevate
her to that rank which she was created to occupy. He has done all he could, to
debase and enslave her mind and now he look triumphantly on the ruin he has
brought. All women for, is that men should ask our brethren, is that they will
take their feet from our neck and permit them to stand upright on that ground
which God designed us to occupy.
Though ancient literature pinpoints towards a better position for the

females, yet many ancient writers eg:- Confucius, Aristotle, Manu etc., were
of the opinion that it is a natural right of a male to assert dominance and the
females were accorded inherently inferior position. As a type of property,
they can be transferred or sold off, and even under the Greek civilization
females were kept within the four walls of the houses.
Therefore, these instances pinpoint that though they occupy a high

position in the family, yet they were subjected to the dominance of male and
were denied of any right. This domination gradually led to sexual perversities
and was found to be the main cause of destruction of civilization as well as
the family unit. The sexual perversities in breeding took place in the society
on account of the inferior position of the females and their easy transferability
and accessibility.
Over the decades there has been an alarming decline in the moral
values all around and the same can be witnessed in India leading to
degeneration of moral and in the guise of open culture the adoption of
immoral ways of existence.
Violence is generally conceptualized in terms of physical force and

destructive conduct. The simplest definition of violence is the behavior
designed to inflict injury on a person or to cause damage to property.
Violence against women is a manifestation of historical unequal power

relation between women and men, which have led to domination over and
discrimination against women, and is a social mechanism by which the
subordinate position of women is sought to be perpetuated. Women suffer
even today, though they constitute more than half of the world
s population.
In a 1980 UN Report, it was reported that women constitute half the
world
s population, perform nearly two-thirds of its work hours, receive
Introduction : Sexual Violence, Concept & Determinants
one-tenth of the world

s income and less than one-hundredths of the world
s
property.
Violence against women is defined as Any act of gender based

violence that results in, or is likely to result in, physical, sexual or
psychological harm or suffering to women, including threats of such acts,
coercion or arbitrary deprivation of liberty, whether occurring in public or
private life.
Sexual violence describes the deliberate use of sex as a weapon to

demonstrate power over and to inflict pain and humiliation upon, another
human being. Sexual violence may be defined as any violence, physical or
psychological, carried out through sexual means or by targeting sexuality.
Sexual violence is a brutal reality of women
s lives and a slur on the face of
civilized human society. Sexual violence, apart from causing immediate
physical harm, leaves a permanent scar in the memory of the victim, which
destroys her emotional psyche tremendously. Sexual violence not only
negates the human rights of the victim concerned but at a large level, affects
the society at large by lowering down the development prospects as it directly
impinges upon the potential of nearly half of the human population i.e.,
women.
Sexual violence may be homosexual as well as heterosexual. Woman

because of their oppressed and subjugated position in society are far more
prone, in terms of vulnerability to sexual violence. The available evidence
suggests that at least one in five of the World
s Female Population has been
physically or sexually abused at some time in their lives.
3
Sexual crimes against women; the most shocking crime against human
conscience and morality occupy a significant place in the penal statutes of
every country. Though women can be subject to all types of crimes but some
crimes are specific to women such as rape, molestation, sexual harassment
and immoral trafficking. Among them rape is perhaps the most damaging and
a serious offence against the dignity of women.
The biological weakness of a woman particularly makes her an easily

vulnerable victim of tyranny at the hands of man in addition to
socio-economic and educational factors. The women, whose inferior status is
established at the birth itself in view of female infanticide and sex
determination are confronted with multi-dimensional problems at all stages of
life, hence an integrated search of means and methods is essential to prevent
crimes, violence and atrocities against women.
Crime against women has existed invariable with time and place.
Types and trends of crimes however, kept changing with change in mind set
and techniques, unfortunately women were not only accorded a lower status
in the society but they also came to be used as objects of enjoyment and
pleasure, thus subjecting them to regular exploitation and victimization. Sex is
a natural phenomenon and is necessary for the continuity of human race and
sexual exploitation is the worst form of degradation of those who indulge in
it. The violation of virginity subjects women to considerable shame and
humiliation.
According to National Crimes Records Bureau , the crime head wise

incidence of reported crimes 2009-2010 is as follows:-
Incidence of Sexual Violence
S.No. Crime Head Year %age Variation in 2010 over 2009
2009 2010
1. Rape 21397 22172 3.5
2. Molestation 38711 40613 4.9
These statistics reveal a pathetic picture of rate of sexual violence

against women in India.
Statistics further reveal that during 2010, the total number of rapes
cases, where investigation could be completed, was very low, as 2802 out of
an initial total of 33436 pending cases and 11980 cases still remained
pending. Chargesheets were submitted in 55.79% of the total cases.
Rape Cases Disposed off by the Police.
Year Total Cases Cases in Chargesheeted Total No. of

for which Cases
5
Investigation Investigation Pending
was Investigation
completed
2010 33436 2802 18654 11980
The figures for Courts reveal a very devastating picture, which raises a
big question mark about the efficiency of our judicial system. Out of a total of
89707 cases for trial (including pending cases), only 3788 (4.2%) trial could
be completed and 75295 (83.9%) remained pending.
Rape Cases Disposed off by the Courts.
Year Total No. Cases in Cases in Cases in Cases

of Cases which trial which which Pending
for trial was conviction Discharge Trial at the
including completed followed or end of the
pending Acquittal Year
cases followed
2010 89707 3788 149 10475 75295
DETERMINANTS OF SEXUAL VIOLENCE
Recent cross-cultural studies on family violence and rape, drawing on

data from 90 societies throughout the world, suggest that four factors, taken
together, are strong predictors of violence against women in a society (i)
economic inequality between men and women; (ii) a pattern of using physical
violence of resolve conflict; (iii) male authority and control of decision
making; and (iv) restrictions on women's ability to leave the family setting.
Apart from these four major predictors, there are several corollaries of
these and other ancillary factors existent in the society, which ultimately give
rise to situations violent to women in sexual terms. Few of the major
determinants of sexual violence are discussed below :
1) Unequal Power Relation in Society
The most important Determinant for sexual violence is the historically

rooted inequality of power relation between men and women. Violence is not
a natural or biological phenomenon rather it is a product of the unequal power
equations in the society. In fact, sexual violence mirrors gender inequalities
and reflect other forms of social inequalities.
The direct consequences of economic disparities is that women, who

earn less than men, are not likely to advance to positions of authority and
power, hence women remain excluded from the control of knowledge system
and its discourse.
2) Cultural Practices and Ideology
Violence rooted in unequal power relations between men and women

may also include frequent infliction of harm that is justified or exonerated
by custom,tradition,religion, etc. Many cultures condone or at least
tolerate a certain amount of violence against women.Devdasi system and
female genital mutilation are amongst the various examples of violence
7
encouraged and perpetuated by cultural and religious practices. Such
cultural devaluation of women constitutes another major precursor for
sexual violence against women
3) Control of Women
s Sexuality
The control of female sexual behavior is the focal point of many law
codes, which place great emphasis on chastity of women. Such control of
sexual behavior establishes the time paternity of the child born to such
woman, which is quite important to ensure the property inheritance by the
legitimate lineage of successors. Violence is often used as an instrument to
control sexual behavior.
Visualizing woman only as a sexual entity reduces her to a sexual

object and it is this dehumanization and objectification, which is the initial
step in making women the acceptable targets of violence.
4) Women as an Object of Pleasure
The male dominance has prevailed in every system and woman has
been visualized as an object of pleasure .The woman had been and is still
treated as property which can be dispensed with at any point of time. The
trend has prevailed in the modern times and women has been used for
advertising products and for encashing their beauty.
IMPACT OF SEXUAL VIOLENCE

Perhaps the worst impact of sexual violence is manifested in the

absence of human security for woman. The experience and fear of violence
are threats in women
s lives that intervene with the most basic human security
needs at all levels Personal, Community, Economic and Political.
In no society, women are secure or treated equally to men, personal

insecurity shadows them from cradle to grave. The fear of violence shapes the
choices woman make what places to visit, at what time, what kind of
employment to be picked up etc. The fear of violence compels women to seek
male protection, which gives rise to a situation of vulnerability and
dependence, which is not conducive to women
s empowerment and
development.
Sexual violence results in serious health hazards for women and

sometimes, the physical injuries caused to the victim may be fatal. The
abused women may contract the sexually transmitted diseases and unwanted
pregnancies. The possibility of HIV transmission is facilitated by the damage
of genital area.
The physical consequences are still easier to enumerate in comparison

to the psychological, emotional or spiritual impacts. Abused women may
show high levels of anxiety, somatic disorders or personality disorder.
Sexual Violence also compromises the healthy development of children

and families of the abused women. In cases of such violence occurring within
the family, the important functions and viability of family as an institution
may get threatened.Sexual Violence against women remains a steep barrier to
9
securing human centered development goals as violence severely hampers the
women
s potential and their contribution towards growth and developmental
processes. Sexual Violence acts as an obstacle to the alleviation of poverty as
the employment choices for women may get severely limited, particularly
because of sexual violence occurring at work place.
Sexual violence is all pervasive and manifests itself in a number of

forms e.g. rape, eve-teasing, sexual harassment at work place, molestation,
etc., which exists in all the institutions of life.
RAPE
Rape is a crime, not only against the person of a woman, it is a crime

against the entire society. It destroys the entire psychology of a woman and
pushes her into deep emotional crises. It is a crime against basic human
rights. Rape is the ultimate violation of the self. It is a humiliating and
traumatic event in a woman's life, which leads to a fear for existence and a
state of powerlessness.
Rape can be the most terrifying event in a woman's life. The fear of
rape affects all women. It inhibits their actions and limits their freedom,
influencing the life as a whole. Right from the childhood, the fear of rape is
infused in every woman in the society, which conditions the personality of the
woman and her choices regarding her conduct. There is no typical
rape
victimor conversely, every woman is a typical rape victim - old women,
little girls, women in wheelchairs, lesbians, virgins, women of every race and
class... are raped .
The word rape is derived from Latin

rapiowhich means to snatch,
hence it literally means a forcible seizure and this element is a characteristic
feature of the offence. It may be defined in the narrow terms as
ravishment
of a woman without her consent by force, fear or fraud or as
the carnal
knowledge of woman by force and against her will
.
Taking the broader view, Susan Brownmiller has described rape as
sexual invasion of the body by force, an incursion into the private, personal
inner sense without consent, in short an internal assault from one of the
several avenues and by one of the several methods. It constitutes a deliberate
violation of emotional, physical and rational integrity and is a hostile
. In words of Nicholans A. Groth, rape is
degrading act of violence a
pseudo sexual act, a pattern of social behaviour that is more concerned with
status, hostility, control and dominance than sexual pleasure or sensual
satisfaction
.
Rape must be understood as the gravest kind of sexual violence against

women an extreme manifestation occurring in the continuum of sexual
violence. Rape stems from sexist values and beliefs and it is not simply an
issue affecting individual woman. It is a social and political issue directly
connected to imbalances of power between men and women. Rape is an act
of aggression in which the victim is denied her self determination. Rape is a
classic act of domination, where in the words of Kate Millett,
the emotions
of hatred, contempt and the desire of break or violate personalitytake place.
11
REACTION TO RAPE
Rape triggers off different types of reactions in the victim and the
society. Whereas the victim perceives rape as the most brutal attack on her
autonomy, the reactions of the society to rape and the rape victim are
reflective of double standards of morality.
Reaction of Rape Victim
Rape is a crime that covers a wide variety of incidents ranging all the
way from a misunderstanding of intention between acquaintances to a
surprise attack by a stranger. Among raped woman, there is a diversity of age,
level of maturity, life experience, ethnicity, and social class. Also friends,
relatives, and law enforcement people will vary in their level of understanding
and treatment of victim, which will in turn have an effect on the impact of the
incident.
1.The Incident
The nature of the rape determines the extent to which a woman

blames herself or is considered by others to be at least partially
responsible. A woman raped by an acquaintance often feels that it was her
fault or that she could have prevented the assault ;Because she blames
herself , criticism from friends and family is difficult for her to handle ,
makes it less likely that she will report the crime , and may possibly
prolong the time taken in resolution of her feelings of guilt.
2.The Victim
The sexual side of rape can be of more concern to young, sexually

inexperienced girls than to older woman. A teenager often feels defiled
and worries that nobody will ever want them now that they have been
raped. Woman
s social class may also have some bearing on their reaction
to sexual assault. Middle and upper class woman possibly suffer more of
an emotional shock because of their lack of familiarity with violence,
crime and victimization. Woman from the lower classes may accept rape
as one more trial in their already difficult lives.
3.The Three Stages Of Reaction
The recovery process varies with each victim, but the reaction to rape is
likely to pass through three phases. These phases are :-
A)The Immediate or Acute Reaction
This stage may last several days and the initial reaction may be one of
shock, disbelief, anger or dismay, along with anxiety and fear. Some
woman show their feelings by crying and are restless and tense, others are
calm and subdued, a reaction which may lead people to believe there was
no rape. This phase is frequently accompanied by physical distress,
headache, nausea, and stomachache etc.
13
The victim may fear being alone and be unable to sleep. At this stage
of reaction the dreams are likely to be a reenactment of the assault, where
the victim is being attacked again and is trying to get away. Eating
patterns may change; there can be a loss of appetite. Practical and
emotional support at this stage are helpful in moving the victim forward to
second phase of adjustment.
B)Outward Adjustment
A woman enters the second phase of adjustment when she appears to

be resuming her activities in a normal manner. She loses interest in
seeking help and wants to talk less her experience. Her physical distress
diminishes and her appetite may return to normal.
At this time, the victim may become hyperactive in her effort to

reorganize her life and she will perhaps change jobs or schools or move to
another apartment. This phase may occur soon after the attack or not for
several weeks. Because she appears to have returned to her normal
activities, a victim
s family may withdraw their support. Also at this stage,
it is helpful if the victim knows what to expect when she enters third phase
of recovery.
C)Integration
During this phase the victim may withdraw from contact with other
people. She is trying to determine her feelings about the rape, the rapist
and persons who have dealt insensitively with her. She may rebuff anyone
who tries to help her, and as time goes on, her depression may return.
This period of reaction is likely to be short and can be considered

normal unless the victim indulges in compulsive rituals or expresses fears
that have nothing to do with the rape. Some take positive steps to reduce
their venerability, such as moving or taking self-defense classes, or
became active in helping other victims of rape , or press charges against
the assailant , for instance to aid in integrating the experience into their
lives.
Reactions of the Society
The society exhibits dual attitudes to rape and the rape victim. At the
level of codified law and public pronouncements, rape is condemned as a
serious crime, whereas at the level of practical implementation, it may be
treated as nothing more serious than a minor skirmish in the inevitable
battle
of sexes.
Traditional understanding of rape reflects a pronounced sexual

schizophrenia, one form of abuse intercourse achieved through physical
force against a chaste woman by a stranger has been treated as the
archetypal antisocial crime. By contrast, coercive sex, which departs from
this paradigm frequently has been denied or discounted.
The social attitudes towards rape and the rape victim are diametrically
opposite. While condemning rape, the society, condemns the rape victim too.
The rape is deemed to be precipitated by the victim, through her words,
15
conduct or mere existence and most of the rapists go scot free because men
are considered to be naturally aggressive and creatures for whom control on
sexual urges is an impossible task.
In patriarchal societies, virginity and chastity are considered to be the

great assets of a woman and loss of chastity whether out of choice or by force
is demeaning to her. Rape is considered to be a transgression against chastity,
the raped women is severely criticized and condemned for loss of chastity.
She faces not only a personal sense of shame, but is also weighed down with
guilt for no fault of hers, because of the constant barbs and criticism that the
society heaps on her. The society equates virtue with chastity in context of
women. A guilty man in the society may be tolerated, but women must be
guiltless and even unsusceptible. These social attitudes have resulted in a
situation, whereby women are told from the childhood that rape is the worst
thing that can happen to a woman. For women, the awareness of the
possibility of rape determines their lives in a very basic way. To be rapable, a
position, which is social,not biological, defiles, what a woman is. All men
may not be potential rapists, but all women are potential victims.
The victim of rape carries social stigma and is never accepted by the
society as a normal human being. She may be thrown out of home, shunned
by the relatives and acquaintances and face a fate worse than death.
MISCONCEPTION ABOUT RAPE

Rape clearly is a crime that does not lend itself to one definition and it
is no wonder that it is surrounded by so many misconceptions. There is a
whole package of myths and lies, which mask the real problems about rape
and diverts the attention of the society, so that the key issues of rape remain
obscure and ambiguous and the woman is, attributed all responsibility for
rape. Rape myths serve as a mechanism of social control and oppression of
women in a patriarchal society. Rape myths perpetuate negative social
attitudes towards rape victim and diminish the real level of male violence.
They teach women to blame themselves for their own victimization. The rape
myths form the foundation for structural acceptance of rape in our society and
allow rape to become normative.
The Most Prevalent Myths About Rape Are Mentioned Below:
Rape is purely a sex crime.
A rapist is a sex starved maniac.
Rapists attack without warning.
Rape is the result of a sudden impulse.
Rapists always attack in dark alleys and other secluded public spots
and if a woman would stay at home where she belongs, she would not
be raped .
It is the woman
s fault she is raped, since a man cannot control himself
once he is aroused.
17
Women secretly desire to be raped.
Women invite rape by their actions or the way they dress.
Women often
Cry rapeto get revenge or cover up a pregnancy.

Nice womenare not raped.
Only young : Attractive women are raped.
A strong and healthy woman cannot be raped.
Women who appear unreasonably upset by rape are unstable.
MOTIVATION FOR RAPE
It has been found that most rapists are married or have sexual
relationship with girlfriends and that they are not deprived of sex. Rather
than being primarily an expression of sexual desire, rape is, in fact the use of
sexuality to express issues of power and anger. It is a sexual act which is
concerned much more with status, aggression, control and dominance than
with sexual pleasure or sexual satisfaction.
Rape where sex is the primary motivation
Most classifications refer to rape in which the major motivation is not

sex but some deep-seated psychological drive within the offender. Data from
victimization studies have produced a whole new classification of rapes that

are not included in these categories. These are rapes by non strangers which
seem to have sex as the primary motivation.
Street wisdom has it that the only difference between rape and rapture
is salesmanship. Sometimes there is a fine line, but basically rape is sex
without consent of female. Also, since the system operates as it does, females
who have put themselves in compromising situations often feel that they have
caused the rape themselves and therefore they do not report it. As the feminist
movement gained strength, it became increasingly clear that acquaintance
rape for outnumber stranger rapes but are no less of a problem for the victim.
In acquaintance rapes, the brutality and violence are usually absent. Since sex
is primary motivation in these cases, any classification of the motivation for
rape would have to include sex in addition to power, anger, and sadism as
maturating factors.
Rape where sex is not the primary motivation
Rape is more for retaliation and compensatory rather than sexual

motives . It is first and foremost an aggressive act that expresses multiple
deep seated psychological meaning. Rapes where sex is not the primary
motivation is divided into three basic categories.
Anger Rape
19
Anger rape is described as an expression of anger, rape, contempt,
hated and frustration . In this kind of assault, the victim is subjected to
brutality and force for beyond that which is necessary to obtain her
submission. The offender strikes and beats his victim , he tears her clothes ,
knocks her on the ground, uses abusive and profane language , rapes her, and
frequently makes her perform or submit to degrading acts.
The rapist does not feel sexually aroused, but instead feels troubled and
hostile. Sex is a weapon and rape is the means in which he uses this weapon
to hurt and degrade. His intent is to hurt and his assault is brutal and violent.
He commits sexual assault as an expression of hostility and rage towards
woman with motivation of revenge, humiliation and degradation.
Power Rape
In this type of sexual assault, the rapist uses whatever force is

necessary to gain control over his victim, the evidence of such power being
that she submits to his sexual demands because of verbal threat, intimidation
with a weapon, or physical force. This provides him with a sense of power,
security, mastery, and control, by which he compensates for underlying
feelings of inadequacy.
The attack is premeditated and preceded by fantasies, and it results in

resolution of disturbing doubts about sexual inadequacy and masculinity. He
may believe that the victim is attracted to him and desires his sexual
advances, and yet he finds little sexual satisfaction in the assault. He rapes to
prove his strength and dominance to deny his feelings of inadequacy.
Sadistic Rape
In the sadistic rape, the rapist derives sexual pleasure by torturing and
injuring the victim. The aggression itself is erotic and is an intensely exciting
experience. The assault is deliberate and premeditated; the victim is stalked,
captured and abused. The rapist
s genitals may not be involved in the assault
and rape may be by an instrument such as bottle or a stick.
Rape for this reason will involve extreme suffering on the part of the
victim and sometimes will result in death. This kind of rape is likely to be
committed by mentally ill rapists or perhaps by a man under the influence of
drugs.
TYPES OF RAPE
There are two major types of rape:
1. Blitz Rape
It occurs without warning or prior interaction between assailant and

victim. There is no explanation for the man
s presence. He suddenly appears
uninvited and forces himself into the situation. He often selects an anonymous
victim and tries to remain anonymous himself. He may wear a mask or gloves
or cover the victim
s face. In the blitz rape the stranger often cannot be
21
clearly seen and may sneak up on a woman or enter her house at night
without her awareness.
2. Confidence Rape
The Confidence rape is an attack where the assailant obtains sex under
false pretences by deceit, betrayal and often violence. There is some
interaction between the assailant and the victim prior to the assault. Like
the confidence man, he encourages the victim to trust him and then betrays
this trust. The assault uses conversation rather than physical force to
capture the victim. Confidence rape may involve a decoy, even another
woman, and can include more than one attacker.
TYPOLOGY OF RAPISTS
Rapists are placed in some general categories to describe some of the

characters:-
1. The Criminal Rapists
The rapists who is nothing but an ordinary criminal. This man takes
what he wants with complete disregard for the rights of others. Often he
has a record of offences for crimes rather than rape, and is antisocial,
easily influenced, and demonstrates little self control. Such a man can be
just as menacing to men as to woman: he is as likely to mug or burglarize
as he is to rape. When he wants something, he takes it, by force if
necessary; and when he rapes, he uses violence, although only to impose
his will. He may kill his victim, but not for sexual gratification, but only to
eliminate a witness. This man
s attacks are not always planned; in fact,
they may be committed as an afterthought along with burglary or some
other offence.
2. The Mentally ill Rapists
The men in this category confuse aggression and sexual desire and
commit sadistic rape.Their concept of sex including erotic fantasies ,
trends to be wrapped up with over coming , dominating , and humiliating a
sexual partner rather than sharing love and pleasure . Some psychiatrists
believe that in contrast to the criminal rapists, the mentally ill rapists may
respond to treatment.
3. The Group Conformer
Gang rape involves more than one type of rapist. First, there are
leaders who initiate the rape. They can be considered similar to the
criminal rapists in that they are aggressive, often brutal and have no regard
for the victim. The rest of the gang do not fall into the category. The
followers in the group may not all want to perform sex acts with the
victim, but most of them do because of group pressure and the need to
prove their masculinity.
4. The Incompetent Romeo
The incompetent Romeo

s are inexperienced young men who fantasize
about sex, the nice boys who shock their whole community when their
23
assaults are revealed. Having no practical information on the subject, they
are influenced by pornography and the bragging they hear in locker rooms
and they want to engage in the sexual experiences they believe are
enjoyed by other men. If the victim puts up a strong fight or humiliates
him, this type of rapist may inflict severe harm on the victim or even kill
her The need for power and desire to bolster his self-esteem motives him
to rape.
5. The Bargain Hunter
The Bargain hunter

s motivation is sex. He thinks it is something to be
obtained at the lowest price .He realizes he may have to pay for it in one
way or another, even marry for it. He is an opportunist Hitchhikers are
particularly likely to be become his targets, as are women under the
influence of drugs or alcohol.
The bargain hunter may use a position of authority to coerce a woman

or child into a sexual relationship. Professional men have been accused of
forcing their sexual attentions on clients and patients. Employers and
teachers have also been known to hold threats of loss of jobs or poor
grades against employees or students unless sexual demands are met.
6. The Debt Collector
The debt collectors rape only acquaintances. They believe that sex is
owned them by women who have led them or by girlfriends with whom
they have had a previous sexual relationship. The debt collector is the type
of man who tries to make a woman feel there is something wrong with her
if she does not repay with sex his favors and attention. This man is
primarily seeking sex. He does not look upon his act as rape, since he
believes he is merely taking what he is entitled to.
TYPES OF RELATIONSHIP BETWEEN RAPISTS AND VICTIM
The type of relationship that existed between the rapist and the victim
prior to the time of the rape can be divided into four classifications:
1. Total Stranger Rape
In the case of total stranger rape one refers to rape a woman by a

person she has never known before and without any warning or
preparation. The total stranger rapist is motivated by anger, power, or
sadism. In fact, illustration given for this kind of rapist describe situation
where the attacker has assaulted without warning woman he has never
seen before. Statically this type of attack probably comprises a relatively
small number of the total, although it is more likely to be reported.
2. Stranger Rapes based on Confidence in the Rapist
In this kind of relationship, the victim and her attacker have some prior
introduction, although it may be relatively brief and situational . In most
cases, the attacker would have rape as his intent and would manipulate the
situation so as to provide a better opportunity than if he grabbed a woman
when he first saw her. This person is looking for someone to assault and
plans the situation so as to have the necessary time and privacy, and he
25
also hopes to compromise the victim as a witness in case of prosecution.
This type of rapist can be called a strategic and patient stranger.
3. Acquainted but not Well Known
This include the case where a woman meets a man in a bar, drinks with
him for a couple of hours and invites him to her home. Clearly, she is
more responsible for the situation than in the complete strangerrape . The
motivation of the attacker in this case may not be firmly established at the
time of the chance encounter.It may be that the attacker interprets the
situation as indicating consent on the part of victim but the victim does
not. Here the victim provides the attacker with what he considers to be
encouragement and an opportunity in terms of privacy.
4. Acquainted and Well Known
When rape occurs in this type of relationship it can be illustrated by a

situation where a man and woman are spending the evening together in her
apartment, but during the evening they argue or he becomes drunk and
aggressive.She asks him to leave, but he refuses to do so and forces her to
engage in intercourse, which he had been anticipating before the evening
was out. An extreme example of this would either be the rape of wife by a
husband after separation or even while living together.
The above classifications of types of relationships seem to be an

important variable between the motivation of rape and type of rape and
type of rapists. These classifications are based on a continuum of intimacy
from strangers to lover.
Sexual Harassment
It is a recently recognized old phenomenon. Sexual Harassment strikes at

the heart of women
s economic self-sufficiency, disrupting women
s earning
capacity by forcing them out of the workplace or school. In many developed
countries there are specific enactments/provisions which provide the
redressed mechanism in cases of sexual harassment of work place, where as
in the developing countries the legislative processes have been initiated or is
being contemplated. In India, the Supreme Court has pronounced in a
landmark decision of Vishakha v. State of Rajasthanthat regard must be had
to the international conventions and norms for construing domestic laws. In
the absence of domestic law occupying the field, to formulate effective
measures to check the evil of sexual harassment of working women at all
work places, the contents of international conventions and norms are
significant.
According to the General Recommendation 23, sexual harassment

includes such unwelcome sexually determined behavior as
a) physical contact and advances
b) a demand or request for sexual flavours
c) sexually coloured remarks
d) showing pornography and
27
e) any other unwelcome physical , verbal or non-verbal conduct of
sexual nature:
The above mentioned definition has been incorporated in Vishakha v.

State of Rajasthan by Supreme Court of India where it has been held that
sexual harassment results in violation of fundamental rights of gender equality
and right to life and liberty enshrined in Constitution of India. Sexual
harassment violates Article 14, 15, 19(1)g and 21 of Constitution of India and
negates the human right of women.
The criminal law recognizes certain forms of Sexual harassment i.e.,

molestation and eve- teasing.The offence of molestation is defined as -
Whoever assaults or uses criminal forces to any woman, intending to outrage
or knowing it to be likely that he will thereby outrage her modesty, shall be
punished with imprisonment of either description for a term which may
extend to two years or with fine , or with both.
Furthermore the Indian Penal Code provides that- whoever intending

to insult the modesty of any woman , utters any word , makes any sound or
gesture or exhibits any object , intending , that such word or sound shall be
heard or that such gesture or object shall be seen , by such woman or intrudes
upon the privacy of such woman shall be punished with a simple
imprisonment for a term which may extend to one year, or with fine or both.
The offence under this section is commonly referred to aseve-teasing.
In India, till 1997, sexual harassment at work place was not specifically
recognized by legal system- neither in the form of legislative enactments, nor
through the judicial interpretations by courts. It was for the first time in 1997,
the legal scenario got changed due to the remarkable judicial activism by the
Supreme Court of India, though the legislative position still remains the same.
Furthermore in Apparel Export Promotion Council v. A.K. Chopra, the

Supreme Court reiterated its earlier stand in Vishaka v. State of Rajasthan,
and held that international instrument cast an obligation on the Indian State to
adopt gender sensitivity in its laws and the Courts are under an obligation to
see that the message of international instruments is not allowed to be
drowned.
Justification :
However, despite of these significant developments, the crime rate

against women remains unabated. The data put forth by national crime record
bureau portrays the sordid state of affairs. The statistical data from 1953 to
2010 reveals that this offence of rape has increased tremendously i.e. 791%.
The increase in the instances of rape not only threatens to bid good bye to the
moral precepts but also questions the adequacy of existing criminal law on
rape. Coupled with it is the agonizing factum of failure of control system in
modern India due to which intensity and frequency of violence against women
is increasing day by day.
A woman suffers not only because of rape but also for aftermath of
rape in the police station, in the hospital, in the court, among family members,
among friends, in the matrimonial market and so on. The rape victim suffers
from social stigma, the fear of public criticism, ostracism and emotional
29
trauma. She seldom gets moral support from her relatives, friends and
neighbors who in their mistaken belief that socializing with her would ruin
their reputation in the society .Therefore the alarming rate of increase in
violent crimes against women warrants a re-look at the legal regime.
Henceforth, the researcher has opted for the problem, Sexual

Violence Against Women With Special Reference To Rape: Victimization
And Judicial Approach in India.
Methodology
Law is a normative science which lays down norms and standard for
human behaviour in a specified situation enforceable through the sanctions of
the state. What distinguishes law from other social sciences is its normative
character. ? Doctrinal research of course, involves analysis of case law,
arranging, ordering and systematizing legal propositions and study of legal
institutions, but it does more it creates law and its major tools to do so is
through legal reasoning or rational deduction.
The present study is based on doctrinal method of research. The

researcher has drawn help from various articles, books, newspapers, reports,
conventions, commissions and judicial decisions. This topic for study is
chosen as the researcher is of the view that the issue of rape needs immediate
attention.
Objectives
The above mentioned study has been undertaken by the researcher keeping in
views the following objectives:
i) To know the position of females in general and sexual offences

committed on her.
ii) To identify the causes of different categories of violence against
women especially rape.
iii) To study the victimological dimensions of rape.
iv) To work out the ways and means for preventing/reducing violence
against women.
v) To study the legislative framework concerning sexual violence against
women especially rape.
vi) To study the judicial approach concerning sexual violence against
women particularly in cases of rape.
It is believed that the study will be helpful so as to build a meaningful and
vibrant supportive system to minimize the chances of rape in India.
OUTLINES OF THE CONTENTS OF THE CHAPTERS
Chapter I
The introductory chapter discusses the concept of sexual violence with

special reference to Rape. A glimpse of past history is given which tells that
women were subjected to male dominance and were denied of rights. It
further discusses the determinants and impact of sexual violence. A statistical
view from National Crime Records Bureau is also shown which reveals a
31
pathetic picture of increased rate of sexual violence against women in India.
This chapter focuses on the misconceptions about rape i.e, the most prevalent
myths related to rape, types of rape and typology of rapists. These myths
perpetuate negative social attitudes towards rape victim and diminish the real
level of male violence. It further briefs about the motivations for rape and the
types of relationship between victims and rapists. This research provides a
s eye view of the research done in the field of
bird Sexual Violence against
women with special reference to Rape: Victimization and Judicial Approach
in India
Chapter II
The chapter titled,

Historical Perspective of Rape
, discusses the
concept of Strisangrahana (Rape) and punishment given by the ancient law
givers like Manu, Narada , Bhraspati, Katya and many others. In ancient
India, rape was a heinous crime and the sanction attached to it was high. It
further elaborates the menace of Rape as putforth in the epics and Muslim
law as well as early British period.
Chapter III
The chapter titled,

Rape: Legislative Framework in India
, deals with
the survey of legislative developments concerning rape from Macaulay to the
contemporary era. It incorporates the perception of Macaulay
s Commission
i.e., Clauses 359 and 360 of Macaulay
s Draft Penal Code that ultimately
culminated in Sections 375 and 376, Indian Penal Code 1860. The chapter
further discusses the legislative developments and law commission reports in

reference to Rape i.e. the law since independence i.e, 42nd law commission
report, the impact of Mathura case; campaign for amendments and the 84th
law commission report. The chapter further discusses the legislative response
to the proposals for reform of rape laws: the Bill of 1980, Joint Parliamentary
Committee Report of 1982 and the Criminal Amendment act of 1983. It
contains the recommendations made by the 156th and 172nd Law Commissions
reports. Existing law i.e., definition of rape, it
s ingredients and punishment
thereof provided in section 375 and 376 of Indian Penal Code 1860.The
salient features of Code of Criminal Procedure (Amendment) Act 2005 and
2008. The features of Criminal Law (Amendment) Bill 2010 and 2012.
Chapter IV
The chapter titled,

Issues concerning Rape : A Critical Comparative
Analysis
, highlights the issues relating to the conceptualization of Rape. It
further analyses the issues regarding the medical examination of the victims,
consent of the victim, corroboration, inquiry into and trial of rape in camera ,
past sexual history of the victim, and publicity during trial and draws a
comparative analysis of the developments concerning the issues with other
countries.
Chapter V
The chapter titled,

Rape : Judicial Approach in India
, focuses on the
criteria adopted by the higher judiciary, while imposing punishments in rape
33
cases. The chapter discusses the judicial decisions in rape cases i.e.
Pratapmishra v. State of Orissa, DhananjoyChatterjee v. State of West
Bengal, BodhisattwaGautam v. SubhraChkraborty, Tukaram v. State of
Maharashtra, State of Punjab v. Gurmit Singh, State of Haryana v. Prem
Chand &Ors , etc.and examines how strict interpretation have affected the
judicial decisions which at times goes against the victim. In this chapter
endeavor has been made to examine the positive contributions of the higher
judiciary respecting the rights of women. The chapter putforth the pragmatic
role of Indian Judiciary in combating the menace of Rape as well as the
approach of Judiciary in relation to rehabilitative techniques adopted for the
Rape victims.
Chapter VI
The final chapter

Conclusions and Suggestions
,putforthcritical
appraisal of the developments concerning sexual offences against women as
well as modest suggestions to reform the prevailing law concerning sexual
offences including rape. The study reveals that the concept of rape can be
best understood by considering rape as a crime of power and not of lust. Rape
is not only a sexual act; it is the most blatant form of violence perpetuated
against women. In India, chastity and virginity are considered to be great
assets of a woman and loss of chastity whether out of choice or force, is a
great handicap. On being raped, the woman is severely criticized and
condemned for loss of chastity. The raped woman faces not only a personal
sense of shame, but also is weighed down with guilt for no fault of her. In a
society like ours, where a woman
s chastity is valued more than her intellect,
a woman who has been raped is ashamed and afraid to identify the criminal.
Rape is serious matter though, unfortunately, it is not attracting serious
discussions. The legislature should intervene and go into the souls of the
matter. The role of the courts under the circumstances assumes greater
importance and it is expected that the courts would deal with such cases in a
more realistic manner. Judicial decision can influence and under certain
circumstances even compel the government to enact the appropriate
provisions to cover up the deficiency in the existing law.
35
CHAPTER - II
The crime of rape is as old as mankind and Rape de famme is a crime

against a woman. For a man cannot rape a person of equal sex due to its
being homogeneous in character. It is technically termed as homosexual act of
having sexual relationship between the members of the same sex. When such
sexual aberration is between two females, it is termed as lesbianism.
Henceforth sexual crime of rape is penetration of male organ to the female
genitals.
If Gnostics are to be believed, the first woman to be raped was the

mother of mankind, Eve. According to them, the visible universe was the evil
creation of a stupid, false God whose henchman raped Eve in the Garden of
Eden. To us, neither God was stupid or false, nor was Eve raped. But
undeniably this most heinous crime existed and does exist since times
immemorial.
Concept under Hinduism
The Mitakshara states that sangrahana means the unlawful coming

together of a man and a woman for sexual enjoyment. Sinful sangrahana is of
three kinds, viz, brought about by force, deceit or sexual passion. The first
(which is rape) occurs when intercourse is had in a secluded place against the
will of woman , or with a woman who is intoxicated or is disordered in mind
or is under a mistake or who she raises a cry ; the second occurs when a
woman is brought to ones house by some trick or pretense , an intoxicant (
such as dhatura ) is administered to her or her mind is brought under control
( by chants or otherwise ) and sexual intercourse takes place ; the third occurs
when intercourse takes place by conveying ( passion) to each other by means
of the eyes (glances ) or by employing a go between and when the parties are
drawn to each other by the temptation of beauty or of wealth. The first is
characterized by winking at a woman , smiling at her , sending a go
between , touching her ornaments or clothes ; the second by the sending of
flowers , fruits , incense , food , clothes and indulging in private talks ; the
third is characterized by lying on the same bed , dalliance , kissing and
embraces. Strisangrahan by force (that is rape) is really included under
sahasa as stated by madanaratna.
Brihad states that if a man commits rape on a woman of the same

caste, he was to forfeit all his property, to have his male genitals cut out and
was to be paraded on the back of an ass. That if woman raped was of a lower
caste, then half of his punishment was to be awarded and if she was of a
higher caste, he was to be sentenced to death together with confiscation of all
property.
Katya prescribes that when a man has forcibly had sexual intercourse
with a woman, capital punishment is to be inflicted inasmuch as it is violation
of (proper) conduct. When sexual intercourse was had by deceit, the man was
punished with confiscation of all property, with branding on the forehead of
the sign of the female private parts and banishment from the town. In the
case of rape and sexual intercourse by deceit, the woman was not at all
punished but she had to undergo a penance (prayaschitta) of krcchra or
paraka for contact with a male other than her husband and till she performed
the prayaschitta she was to kept well
guarded in the house, was to remain
dirty (i.e. not to deck herself or apply perfumes) , to lie on the ground ( not on
a bed stead or couch ) , was to receive bare maintenance . After performing
prayaschitta she was resorted to her former position.
Narada holds that sexual intercourse with the step mother, mother
s
sister, mother-in-law, the paternal or maternal uncles wife, father
s sister, a
friend
s or pupil
s wife, sister, daughter , daughter-in-law, a woman that
sought protection , an ascetic woman ( pravrajita ) or a virtuous wife (sadhvi)
is incestuous and the punishment to be prescribed for this crime is the
excision of his genital and no less. The punishment for sangrahana (rape and
adultery) varied according to the caste of the man and the woman , according
as the woman was married or unmarried and according as she was guarded
(gupta) or unguarded.. According to Narada, sexual relation with another
s wife is
man Sahasaof highest degree prescribing highest ammercement
including death as well as amputation of offending limb. Further the ancient
sutras and smritis prescribe more severe sentences than later smritis.
The Hindu law giver Manu gives example of incestuous relation as

follows :- sexual relation with sisters by same mother, he places sexual
relation with teachers wife at the top incestuous crime. He denounces sexual
intercourse with wife of other man in strong terms. He prescribes heavy
punishment followed by banishment of such offender. But they all went so far
as to say that of a man had a sexual intercourse with a maiden (of the same
caste) who encouraged his advances, then there is no offence punishable by
3
the king, but he was to bestow ornaments on her, honour her and must marry
her.
Brihaspati Smriti states the woman of east practiced promiscuity and

that was the custom of the land, which was not to be condemned as it was an
accepted custom. Baudhyan, Manu, Yajnavalkya, all great law givers of their
period, state that the wives of actors, singers, etc., could have sexual
intercourse with others, beyond marital relationship, with the knowledge and
approval of their masters or husbands. It is amusing to find from ancient texts
that it was usual with such masters or husbands to remain hidden at the time
of such intercourse and appear in the mid of act or after it , to claim the rent
of such love-making .They lived on their wives.
Apparently from this class of actors and singers arose the institution of
dancers and of prostitutes. The master or husband still continues to exist in
some form in every house of an Indian prostitute. There are reference in
ancient texts which states that no one must be proud of his origin, for none
knows indeed who his father is.
In ancient India, as in later Vedic age, no tolerance was shown to

adulterer . Buddhist literature condones murder of a man who is discovered
in the arms of another man

s wife
. But it was not adultery to use a singer or
actor
s wife, a prostitute (abhisarika) , a public harot (veshya) , a corrupt
woman (svairini) , if she was not of the Brahmin
s caste, or a slave girl or if
she is not desired by her master.
The word in sanskrit for sexual intercourse with such women is
bhujishya.In sanskrit husband is called

bhartar
, which means nourishes,
protector and it was considered a great sin to live on the income of wife by
her love affairs as sinful as killing the sacred cow.
It was a usual practice in the ancient India as it was in old muslim

kingdom as also with muslim rulers in the recent past, to keep some woman,
according to the means of the person concerned, for the temporary use of a
guest as a definitive gift to the guest. It is stated in Mahabharata that king
Yudhishtra of the Pandavas kept thousands of girls, young and bewitching,
wearing bracelets and most splendid ornaments, sprinkled with sandalwood
scent, skilled in the 64 arts, and with great skill in dancing and singing, that
they may hospitably wait on the Brahmins, ministers and kings.
The grand old man, Bhishma narrated a story to the eldest brother of
the Pandavas , Yudhishtra about the mighty sage Ashtavakra who was
awakened in the night by an old woman who asked for sexual intercourse .
When the sage did not respond to her entreaties, enticements and allurements,
she remarked, that, neither the God of wind, nor Varun (water-god), nor the
other 33 gods are so dear to woman as the God of love for, to woman, the
pleasure of love is all. Among thousands of woman , there is to be found one
only that is faithful to her husband , if indeed , one at all . They know not
fathers, family, mother, brothers, husband or brother-in-law. Given to their
pleasure, they destroy families, as great rivers destroy banks.
When the sage refused to budge and did not succumb to her passions,
she assumed the shape of a lovely maiden and revealed herself to him as the
5
goddess of the northern region who had come to test him and to show to him
the fickleness of woman, She said after giving blessings to the sage
even old
woman are plagued by the feverish longing for man.
Through epics and world history, universe has witnessed the masculine
superiority and priority over the feminine and it has since from the time
immemorial been witnessed practically by all.Nevertheless, the absence of
such crime cannot be ruled out or there is possibility of presence of such
heinous crime, hence this evil is in vogue in our society in the past, at present
and could carry to future.
Crime is eternal as eternal as society and as old as creation itself. Even

God and Goddesses are not free from such impulses. The study of Vedas and
Puranas depicts that sex played prominent role among the people. Paramours
and concubines abound in the society. The love charms are designed to win
the love of person of opposite sex or to restore lost love.
The great Ramayana demonstrates us the monkey brothers Balee and

Sugriva who had common wives. Tara and Ruma, of course Rama punished
Bali for illicit relation with Ruma. Laxity in sexlife is also noticeable in case
of Ravana by kidnapping Sita and persuading her, through different means to
become his wife, Courtesans are employed in welcoming distinguished
visitors. In Mahabharata, Draupadi was married to five brothers and well
known Vidura was issue of maid servant having been enjoyed by his master.
Kijok and Duryodhana assaulted Draupadi sexually. The influence of sex on
the society, since early times, has been proved by marked painting and
sculpture of, Khajuraho built by Chandelle dynasty having number of Hindus
Temples including Mahadev Temple, depicting daily chores and intimate

ecstasies of love and sex.
In the Vedic smritis , it has been pointed out that human being are not
only virtuous but also of adorned vices .Therefore it is undenied fact that the
evil propensities are also a part of human nature irrespective of time and
place.The seduction of Angiras Brahaspati
s wife Tara by Soma , the birth of
pururavas out of illicit union of Budha and Illa , the birth of Bharadvaja from
s wife testifies the laxity in
the illegilimate union of Brahaspati with brother
sexual relation of ancient time.
According to Kautilya , if a person of any of four caste infringes the

modesty of queen ( kings wife),person so offended had to be cooked to death
, but forcible intercourse with a widow ( which amount of rape) living alone
was found penalized with fine plus hundred panas .When the maiden so
defiled was minor, the punishment was severe. This is reflection of our
ancient society that there had been protection of minor during that period
according to the law of that time. Kautilya recognizes prostitutes as a woman
first and as prostitutes afterwards. If a person has sexual relation with a minor
girl of prostitute against her will, he was awarded the highest amercement.
But if such physical relation is with consent of the minor girl of the prostitute,
only first amercement was imposed. When the girl was minor as well as
un-willing, the punishment was heavy. Rape of slave girl and female servant
were common, but viewed seriously and offender were fined only. The guard
of nobles who misbehaved with slave girls were also fined heavier and the
system was to protect them in the society.
7
Concept under Islam
Islam views human life as a sacred gift from God. The Quran
repeatedly stresses the sanctity of life. The life of every single individual
regardless of gender, age, nationality or religion is worthy of respect. In
verses referring to the sanctity of life, the term used is
nafs(soul, life); and
there is no distinction made in that soul being young or old, male or female,
muslim or non-muslim.

Do not take any human being's life, (the life) which God has declared
to be sacred - otherwise than in (the pursuit of) justice: this has He enjoined
upon you so that you might use your reason.
Quranic teachings encompass every aspect of life; hence it does not

limit the definition of life to the physical body only, but includes the mental,
emotional and spiritual aspects as well. There are about 150 verses that define
the term
nafsin various ways making it clear that the concept of
lifeis not
limited to mere physical existence.
Historically, Islam has addressed serious issues openly and sought to

correct actions that constitute harm or
zulm(ie: cruelty and abuse) to the
dignity of humankind. Human life and respect for it has been stressed
unstintingly, regardless of age or gender. As a general rule, Islam forbids all
zulm
, be it physical, mental, emotional or spiritual.
Abandon all harm (ithm), whether committed openly or in secret.

In the last address to his community, the Prophet said: Your lives and
properties are forbidden to one another till you meet your Lord on the Day
of Resurrection Regard the life and property of every Muslim as a sacred
trust Hurt no one so that no one may hurt you... You will neither inflict nor
suffer any inequity. The Prophet (saw) did not prohibit only the unlawful
encroachment of one another
s life and property, but also honor and respect.
The Quran has, in various ways and in different contexts; impressed on

men that they must observe the limits set by God (Hudud Allah) in respect to
women and must not encroach upon their rights in either marriage or divorce.
In all situations it is the men who are reminded, corrected and reprimanded,
over and over again, to be generous to women and to be kind, compassionate,
fair and just in their dealings with women. Even in divorce, when the chances
of anger and vindictiveness are high, it is stressed that men are to separate
with grace, equity and generosity.
Forbidding cruelty against children and women is apparent from rulings

against female infanticide and rights of inheritance given even to an unborn
child; and the kindness mandated even when divorcing your wife. There are
numerous ahadith about the rights of children to respect and dignity. The
same holds true for respect and the unprecedented rights given to women.

O you who believe! You are forbidden to inherit women against their
will...
... And do not, in order to gain some of the fleeting pleasures of this worldly
9
life, coerce your slave women into whoredom if they are desirous of
marriage, and if anyone should coerce them, then, verily, after they have been
compelled (to submit in their helplessness), God will be much forgiving, a
dispenser of grace (to them)
During the time of the Prophet (saw) punishment was inflicted on the
rapist on the solitary evidence of the woman who was raped by him. Wa
il
ibn Hujr reports of an incident when a woman was raped. Later, when some
people came by, she identified and accused the man of raping her. They
seized him and brought him to Allah
s messenger, who said to the woman,
Go away, for Allah has forgiven you,but of the man who had raped her, he
said,
Stone him to death.
During the time when Umar (raa) was the Khalifah, a woman accused
his son Abu Shahmah of raping her; she brought the infant borne of this
incident with her to the mosque and publicly spoke about what had happened.
Umar (raa) asked his son who acknowledged committing the crime and was
duly punished right there and then. There was no punishment given to the
woman.
Islamic legal scholars interpret rape as a crime in the category of

Hiraba. In , hiraba is described as:
Fiqh-us-Sunnah a single person or
group of people causing public disruption, killing, forcibly taking property or
money, attacking or raping women (hatk al
arad), killing cattle, or disrupting
agriculture.
The famous jurist, Ibn Hazm, had the widest definition of hiraba,
defining a hiraba offender as:
One who puts people in fear on the road,
whether or not with a weapon, at night or day, in urban areas or in open
spaces, in the palace of a caliph or a mosque, with or without accomplices, in
the desert or in the village, in a large or small city, with one or more people
making people fear that they
ll be killed, or have money taken, or be raped
(hatk al
arad) whether the attackers are one or many.
Al-Dasuqi held that if a person forced a woman to have sex, his actions
would be deemed as committing hiraba. In addition, the Maliki judge Ibn
Arabi, relates a story in which a group was attacked and a woman in their
party was raped. Responding to the argument that the crime did not constitute
hiraba because no money was taken and no weapons used, Ibn
Arabi replied
indignantly that
hiraba with the private parts is much worse than hiraba
involving the taking of money, and that anyone would rather be subjected to
the latter than the former.
The crime of rape is classified not as a subcategory of

zina
(consensual adultery), but rather as a separate crime of violence under hiraba.
This classification is logical, as the
takingis of the victim
s property (the
rape victim
s sexual autonomy) by force. In Islam, sexual autonomy and
pleasure is a fundamental right for both women and men (Ghazali); taking by
force someone
s right to control the sexual activity of one
s body is thus a
form of hiraba.
Rape as hiraba is a violent crime that uses sexual intercourse as a

weapon. The focus in a hiraba prosecution is the accused rapist and his intent
11
and physical actions, and not second-guessing the consent of the rape victim.
Hiraba does not require four witnesses to prove the offense, circumstantial
evidence, medical data and expert testimony form the evidence used to
prosecute such crimes.
Islamic legal responses to rape are not limited to a criminal prosecution

for hiraba. Islamic jurisprudence also provides an avenue for civil redress for
a rape survivor in its law of
jirah(wounds). Islamic law designates
ownership rights to each part of one
s body, and a right to corresponding
compensation for any harm done unlawfully to any of those parts. Islamic law
calls this the
law of jirah(wounds). Harm to a sexual organ, therefore,
entitles the person harmed to appropriate financial compensation under
classical Islamic jirah jurisprudence. Each school of Islamic law has held that
where a woman is harmed through sexual intercourse (some include marital
intercourse), she is entitled to financial compensation for the harm. Further,
where this intercourse was without the consent of the woman, the perpetrator
must pay the woman both the basic compensation for the harm, as well as an
additional amount based on the
diyya(financial compensation for murder,
akin to a wrongful death payment).
Islamic law, with its radical introduction of a woman

s right to own
property as a fundamental right, employs a gender-egalitarian attitude in this
area of jurisprudence. In fact, there is a hadith specifically directed to
transforming the early Muslim population out of this patriarchal attitude of
male financial compensation for female sexual activity. During the time of
Prophet Muhammad, a young man committed zina with his employer
s wife.
The father of the young man gave one hundred goats and a maid as
compensation to the employer, who accepted it. When the case was reported
to the Prophet, he ordered the return of the goats and the maid to the young
man
s father and prosecuted the adulterer for zina.
Early Islam thus established that there should be no tolerance of the

attitude that a woman
s sexual activity is something to be bartered, pawned,
gossiped about, or owned by the men in her life. Personal responsibility of
every human being for their own actions is a fundamental principle in Islamic
thought.
The Quran is very clear that the basis of a marital relationship is love
and affection between the spouses, not power or control. Rape is
unacceptable in such a relationship,
Your wives are your tilth; go then unto
your tilth as you may desire, but first provide something for your souls, and
remain conscious of God, and know that your are destined to meet Him...

And among His wonders is this: He creates for you mates out of your
own kind, so that your might incline towards then, and He engenders love and
tenderness between you: in this, behold, there are messages indeed for people
who think

... They are as a garment for you, and you are as a garment for them.
... And consort with your wives in a goodly manner, for if you dislike them,
it may well be that you dislike something which God might yet make a source
of abundant good.
13
In the context of jirah, it would appear so: where there is any physical
harm or disease caused to a spouse, there may be a claim for jirah
compensation. The law of jirah provides for compensation for physical harm
between spouses, and supports Islamic legislation against domestic abuse.
Even in these discussions of appropriate jirah compensation, the question of
the injured party
s consent plays a central role. Some Islamic jurists
considered consent to be presumed by virtue of the marital relationship, while
others maintain that where harm occurs, it is an assault, regardless of the
consent, and therefore compensation is due. In our modern era, one might
take these precedents and their premium focus on consent and apply the
Islamic principle of sexual autonomy to conclude that any sex without
consent is harmful, as a dishonoring of the unwilling party
s sexual autonomy.
Thus, modern Islamic jurists and legislators, taking a gender-egalitarian
perspective, might conclude that Islamic law does recognize marital rape, and
assign the appropriate injunctions and compensation for this personally
devastating harm.
An often misquoted and abused hadith that is used to tyrannize women

is that women cannot and should not say no to their husband when he
approaches them Women are advised not to turn away from their husbands
except if they have their period or any other reasonable excuse. So much so
that she is to break her voluntary fast if her husband approaches her. And if
they do angels will curse them. However, this hadith is not quoted with the
complementary one that advises men of the same consideration.
In the same manner men are advised that meeting the needs of their
wives takes precedence over voluntary worship. Narrated Abdullah bin Amr
bin Al-As:
Prophet Muhammad (saw) said,
O Abdullah! I have been
informed that you fast all the day and stand in prayer all night?I said,
Yes,
O Allah's Apostle!He said,
Do not do that! Observe the fast sometimes and
also leave them at other times, stand up for the prayer at night and also sleep
at night. Your body has a right over you and your wife has a right over you.
To a certain degree these ahadith are used to confuse and distract from
the issue, since rape does not have anything to do with permission or lack of
permission. In a marriage abusive or forced sexual activity cannot be justified
by abusing this hadith. Rape is defined as unwanted, violent and forced sex,
whether this occurs in a marital context or outside it. The definition of rape
does not change because of the relationship.
It is important to not confuse the issue of mutual rights that a couple

has on each other with the misguided, distorted and misogynist assumption
that women become a husband's property. Islam does not allow for or tolerate
ownership of human beings. Human dignity does not allow that any one
person has the right to own, mind/body/soul, of another human being... and
Islam demands that all human beings respect the humanity of everyone.
According to Islam, a woman has to be respected and protected under

all circumstances, whether she belongs to your own nation or to the nation of
an enemy, whether she follows your religion or belongs to some other religion
or has no religion at all. A Muslim cannot outrage her under any
circumstances. All promiscuous relationships have been forbidden to him,
15
irrespective of the status or position of the woman, whether the woman is a
willing or an unwilling partner to the act. The words of the Holy Quran in this
respect are:
Do not approach (the bounds of) adultery
. Heavy punishment
has been prescribed for this crime, and the order has not been qualified by
any conditions. Since the violation of chastity of a woman is forbidden in
Islam, a Muslim who perpetrates this crime cannot escape punishment.
The Muslim Law equally sternly condemned rape, the punishment

ranging from stoning to death to the infliction of hundred stripes. The scanty
literature available on this area does not throw any light on whether rape was
considered as a crime against a human being i.e. woman or her perspectives
were taken into account at all.
According to Islam, all aspects of life, i.e; the physical, mental,

emotional and spiritual, are sacred and must be respected. No gender or
relationship has been given the power or right to hurt or harm the other.
Domestic violence, rape and incest are all violent and criminal abuses that are
outside the bounds of what is permitted in Islam and there is absolutely no
justification for it whatsoever.
Thus the ancient literature puts stress on respect and dignity of the
females and every assault on their person is forbidden. The sexual assaults
were clearly demarcated and classified and according to the type of the sexual
assault, punishment has been prescribed, i.e., from simple to rigorous .The
woman had never been a thing to be possessed; but enjoyed the equal status
with man, amply guarded and protected.
17
CHAPTER-III
RAPE: LEGISLATIVE DEVELOPMENTS IN INDIA
Criminal Law of a country, in its quest to preserve social order and

solidarity, not only prescribes a set of norms of human behaviour but also
forbids the human conduct against social conditions. It also stipulates
punitive
sanctionfor the perilous outlawed conduct.
However, the kind of conduct to be

forbiddenand to the formal penal
sanctionconsidered as best calculated to prevent the officially outlawed

conduct depending upon the
social settingand
socio- moral-legal ethos
of a community. Nature and contents of criminal law and social (punitive)
reaction to the violation of penal law, therefore, varied with changes in
social conditions.
Penal law of a country, therefore, needs to be appreciated and

understood in the backdrop of its prevailing social, moral and cultural
values and political ideologies.
Rape: Perception Of Macaulays Commission
In British India, the Courts set up by the East India Company

administered and adopted Muslim penal norms of criminal justice. In
1828, an Act for improving the administration of criminal justice in the
British colonies in Asia was passed, which declared rape as an offence
punishable with death, provided the girl was below 8 years and with
imprisonment in other cases.
In 1834, Thomas Macaulay landed in India to take his seat as Law
member on the Supreme Council, under the charter of 1833. He undertook
the herculean task of providing a code of substantive criminal law for
India. He devoted clauses 359 to 360 to the offence of rape in the Penal
Code. Section-359 defined the offence and section-360 specified the
punishment for it.
As observed by Vasudha Dhagamwar , Clause 359 reflected the
Victorian notions of morality. It attracted several comments from the

judicial officer of East India Company. Messrs Campbell and Pyne of
Madras Presidency argued that a woman, who submitted to threat of trivial
hurt, was not reluctant and did not deserve the protection of law.
Greenhill, a judicial officer, suggested that
hurtshould be amended to
read
grievous hurt
. This suggestion was accepted by the Law
Commissioners, but was rejected by J.M. McLeod his notes on the Report
of the Law Commissioners. He went to remark that these sections were
not intended to protect only
rigid chastity
.
J.F. Thomas , a judge in Madras Presidency, criticised the code for

giving too wide a range of punishment. He argued that once the
commission of rape is proved, character of the woman should be no
criteria and same punishment should be awarded to all offenders. But the
Law Commissioners took a different view and held that injury in case of a
high class woman is surely infinitely more than in case of a woman of low
caste, who was presumed to be without character. It is pertinent to point
out that both Law Commissioners and Thomas saw the problem in terms
of a high caste woman
s violation by low caste man as the most heinous of
rapes requiring the strictest punishment. Hence, instead of assuring equal
Rape: Legislative Developments In India
protection of law for all, the Commissioners were only reinforcing the
caste system hierarchy.
Section-375 of the final version differed from Clause-359 as it

incorporated an important amendment that
sexual intercourse by a man
with his own wife, the wife not being under ten years of age, is not a
rape
. No reasons for this change were given by the Select Committee.
For thirty years, after the enactment of Indian Penal Code 1860, rape
law remained the same. The later change was owing to a number of cases
in Bengal in which the child wife died due to consummation of marriage.
Out of these, the most notable was Queen Empress v. Haree Mohan
Mythee. This case tells the pathetic story of Phulmonee Dassee, who was
eleven years and three months old when she died as a result of rape
committed on her by her husband. The medical evidence showed that
Phulmonee had died of bleeding caused by ruptured vagina. In this case,
rape of child wife was severely condemned and it was held that the
husband did not have the right to enjoy the person of his wife without
regard to the question of safety to her.
In 1891, Sir Andrew Scoble introduced the Bill, which culminated into
Indian Criminal Law (Amendment) Act, 1891. This Act raised the age of
consent to 12 years both in cases of marital and extra-marital rapes. The
object of Act was humanitarian, viz.
to protect female children from
immature prostitution and from pre-mature cohabitation
. Pre-mature
cohabitation resulted in immense suffering and sometimes even to death of
the girl and generally resulted in injury to her health and that of her
progeny.
3
Beginning of the 20th Century witnessed increased public attention
towards the improvement in the physique of the nation and the reduction of
causes leading to abnormal mortality of younger generation. In 1922, Rai
Bahadur Bakshi Sohan Lal, MLA, moved for leave to introduce a Bill in
the Assembly to amend section-375, IPC, by raising the age of consent in
both marital and extra-marital cases. This attempt to legislation proved
futile, but with the passing years, agitation for a modification of law
steadily grew owing to a better knowledge of the evil consequences of
early marriage and early consummation.
In 1924, Dr. Hari Singh Gour introduced a Bill to amend section-375,

IPC, raising the age to 14 years in both marital and extra-marital cases.
The Bill was referred to a Select Committee, which made a material
alteration by reducing the age from 14 to 13 years in the case of marital
rape. On 1 st September 1925, Sir Alexender Muddiman introduced the Bill
fixing 14 years the age in extra-marital cases and 13 years in marital cases,
which culminated into Amendment Act, 1925. The amendment in 1925 for
the first time introduced a distinction between marital and extra-marital
rape cases by providing different age of consent in marital rape cases. The
distinction was further emphasised in section-376 by incorporating the
words
unless the woman raped is his own wife and is not under twelve
years of age
, in which case the punishment was diluted by prescribing a
maximum of two years. Thus, the purpose aimed to be achieved by raising
the age of consent to 13 years, stood mitigated to a large extent by the
diluted punishment provided by amended section-376.
The question of age of consent was not considered as finally settled

and Dr. Hari Singh Gaur again introduced a Bill in 1927 to raise the age
to 14 and 16 years in marital and extra-marital cases respectively. It was

followed by the appointment of Age of Consent Committee, which
reviewed the prevailing situation and suggested few amendments.
The Committee was of the opinion that the amended law was
ineffective due to the nature of the offence, particularly in case of marriage
as consummation necessarily involves privacy. The prevalent view among
the awakened sections of society was that prohibiting the marriage of a girl
under a particular age would be a better measure than to increase the age
of consent for sexual intercourse. The dissenting group among these
classes felt that law was partly futile because it afforded no protection to
the girls over 13 years, who need it on account of their tender age. The
Committee recommended the use of term
marital misbehaviourinstead of
rape in marital cases. The offence of marital misbehaviour would be
committed by a husband in case of sexual intercourse with his wife below
15 years of age. The Committee recommended the inclusion of offence of
marital misbehaviour in Chapter XX of IPC and section-375 and
section-376 of the IPC should be confined to rape outside the marital
relation..The Committee also recommended maximum punishment of
either description for 10 years and fine where the wife was below 12 years
of age and imprisonment, which may extend to one year or fine or both,
where wife was between 12-15 years.
LAW SINCE INDEPENDENCE
In 1949, rape laws were further amended in respect of the age of

consent. The age was raised to 16 years in clause fifth of section-375,
dealing with extra-marital cases and 15 years in the exception dealing with
the marital cases, by section-3 of the amending Act. Another amendment
5
was brought about in 1955, which substituted the words
transportation for
lifeby
imprisonment for lifein section-376.
The Indian Law Commission had stated its intention of revising the
Indian Penal Code in 1959, but it was only after twelve years, in 1971 that
the Law Commission could send its report on the IPC to the Union Law
Minister.
The main recommendations of the 42nd Law Commission Report are as

follows-
1. The members of Law Commission noted that under the third clause of
section-375, consent of the woman is vitiated only when she has been
put in fear of death or bodily hurt to herself. The clause did not cover
the situations, where death or grievous hurt is threatened to someone
else present on the spot. They suggested the addition of words either
to herself or to anyone else present at the place after the word
hurtto
cover such situations.
2. The members of Law Commission took note of the case of forcible

sexual intercourse by the husband, when the couple had been living
apart under a decree of judicial separation or by mutual agreement.
They considered that such sexual intercourse should be treated as rape.
3. The members recommended that the forcible intercourse by husband

when the wife is under 15 years of age, should not be called rape in the
technical sense and the punishment for the offence may be provided in a
separate provision. They recommended section-376-A, which provided
for the punishment for sexual intercourse with his child wife.
4. The members opined that in case of a girl between 12-16 years, who
consented for the intercourse, the offence should not be equated and not
punished as severely as rape. They recommended a separate
section-376-B for such cases and the maximum period of punishment
was prescribed as 7 years.
5. The Law Commissioners prescribed enhanced rigorous punishment of

14 years for the offence of rape.
6. The most significant contribution by the Law Commission was the

recognition of the phenomenon of
custodial rape
. It was commented
that under certain situations, woman
s submission to sexual intercourse
is really not a willing consent, whereby men in authority take advantage
of the women under their custody. Sections -376-C, D and E were
recommended, prescribing for punishments in cases of illicit intercourse
by a public servant, superintendent of women's or children's institution
and manager of a hospital.
The 42nd report had few inherent anomalies :
1. Section - 376-A as suggested by the Law Commission, which provided

for the punishment for sexual intercourse with child wife in fact diluted
the punishment in case of wife under 12 years of age. The Law, then
prevailing, provided a discretion to the Court to extend the punishment
upto 2 years in all rape cases, whereas the suggested Section reduced
the punishment to a maximum of 2 years.
2. The patriarchal notions were reflected in the provisions as the maximum

punishment provided in section-376-B, for the rape of a girl between
7
12-16 years, who had consented was 7 years with fine and the
maximum punishment for her married counterpart only 2 years.
3. Whereas the cases of illicit intercourse of public servant, superintendent

of children
s or women's institution and manager of a hospital, etc.,
were covered under sections 376-C, D, E, custodial rapes committed by
police, were not even recognised by the Law Commission.
The 42nd Law Commission Report was followed by the IPC

(Amendment) Bill, 1972. A Joint Committee was appointed to review the
Bill, which presented its report on Feb.29, 1976. Its main observations
were as follows :
1. The Committee was of the opinion that sexual intercourse by a man with
his own wife whatever might be her age, should not be regarded as rape.
2. The Committee diluted the maximum punishment to 10 years from life

imprisonment, which could be imposed depending upon the gravity of
offence.
3. Punishment for 3 years was recommended in case of judicially

separated wife.
4. The cases of custodial rape, cases of seduction by the public servant

etc., taking undue advantage of his position, were recognized and
compulsory imprisonment with fine were imposed as punishment. In
case of a mental patient, the rapist
s knowledge of her condition was
rendered irrelevant.
The Bill of 1972 also lapsed and for more than 100 years old rape law
continued to exist with minor amendments from time to time regarding the
age of consent. In 1979, the Bill, which was passed by Rajya Sabha and
was pending in Lok Sabha lapsed because of the dissolution of Lok Sabha
in 1979.
IMPACT OF MATHURA CASE; CAMPAIGN FOR

AMENDMENTS AND THE 84 TH LAW COMMISSION REPORT
The decision of the Supreme Court in Tuka Ram v. State of

Maharashtra created furors in the field of rape law. The facts of this case
were so peculiar and the decision so coldly legalistic and unjust that it led
to the culmination of mass movement for the amendment of rape laws.
In this case, Mathura was a young girl of 14-16 years. She had
developed a relationship with her employer
s cousin. On March 26 1972,
her brother filed a report that Mathura was kidnapped by her employer and
her boy friend. They were all brought to the Police Station at 9 P.M. and
their statements were recorded. When everybody started to leave, Mathura
was directed to remain at Police Station by Tuka Ram, the Head Constable
and Ganpat, a Constable. While both Policemen were on duty, they bolted
the doors and put off the lights. Ganpat raped Mathura and Tuka Ram
fondled her private parts. Tuka Ram was too drunk to rape Mathura. A
crowd gathered outside and then shortly after Mathura came out and
announced that she had been raped by Ganpat. Mathura was examined on
the next day. Her report showed old ruptures of hymen and that she was
habituated to sexual intercourse. In Sessions Court, this fact was held
9
against her and the accused were acquitted. It was held that Mathura had
in fact consented to the act. The Bombay High Court reversed the decision
and sentenced Tuka Ram to rigorous imprisonment for 1 year and Ganpat
for 5 years. The High Court held that mere passive submission or helpless
surrender of the body and its resignation to the other
s lust induced by
threats or fears cannot be equated with consent.
The Supreme Court reversed the decision and held that Mathura had
consented to the act. There were no injuries on person of Mathura, thus, it
was held that the story of rape was concocted by her and her testimony
was disbelieved. Further, it was held that only fear of death or hurt could
vitiate consent in the clause thirdly. The operation of clause secondly was
not even considered.
The decision drew attention of four law teachers; Prof. Upendra Baxi,
Prof. Raghu Nath Kelkar, Prof. Lotika Sarkar of Delhi University and
Prof. Vasudha Dhagamwar of ILS, Pune. In October, 1979, they wrote an
Open Letter to the Chief Justice of India

, protesting against the
judgement. This letter created an unprecedented furor and received
tremendous publicity from the Press. The Open Letter criticised Supreme
Court judgement and stated that there is a clear difference in law and
common sense between consent and submission. The facts of the case
revealed submission on part of Mathura and not the consent. It was
questioned in open letter, is the taboo against pre-marital sex was so
strong as to provide a licence to Indian Police to rape young women.
This decision shook the conscience of many belonging to civilized

society for the custodians of law and order and had taken advantage of an
innocent girl and turned the Police Station into a theatre of sex. Thus,
Mathura case has become a major reference point for any discussion on
rape laws.
There was a nationwide movement for the amendment of law and

many mass protests, demonstrations and meetings were organized by the
women organizations, lawyers, teachers, students, social workers, etc. An
academic protest by a group of four got transformed into a national wave
and, thus, became a unique event in history of criminal law. The judgment
was widely criticised both inside and outside Parliament as an
extraordinary decision scarifying human rights of women under law and
the Constitution. The Government took serious note of the rare degree of
sensibility of public as well as of the parliamentary criticism of the law and
its failure to safeguard the rights of innocent rape victims. Thus, the Law
Commission was appointed to submit its report on law relating to rape and
allied offences in 1980. The Law Commission submitted its 84 th Report in
a remarkable time period of less than one month.
The main recommendations of the 84th Law Commission Report were as

follows :
The Substantive Law
1. The Law Commission devoted special attention to the concept of

consent. They emphasized that the consent should be active consent,
which is not said to be implied by silence. They suggested the
substitution of the word
consentby the words
free and voluntary
consentin section -375.
2. The Law Commission considered that in the third clause to section-375,

the consent is vitiated not only when a women is put in fear of death or
11
hurt, but also when she is put in fear of any
injurybeing caused to any
person, including herself in body, mind, reputation or property and also
when her consent is obtained by criminal intimidation. Thus, they
suggested the insertion of word
injuryin third clause to section-375,
which would take care of situations, in which woman is threatened with
injury to herself or anyone else in whom she is interested.
3. The Law Commission pointed out that rape can be committed without
overt violence and the injuries on the person of the woman are not the
compulsory and conclusive evidence of the commission of the crime.
4. The Law Commission suggested that addition of sub-clause (b) to

clause fourthly, to take into account numerous situations falling under
the guise of misconception.
5. The Law Commission suggested that a new clause fifthly should be

added to section-375, covering the situation when consent is obtained
by intoxication or administration of some stupefying substance to the
woman.
6. The Law Commission made a strong suggestion to raise the age of

consent to 18 years. It was asserted that when according to the Child
Marriage Restraint Act, 1929, marriage of a girl below 18 years is
prohibited then sexual intercourse with a girl below 18 years should also
be prohibited.
7. The Law Commission recommended that a rape of child wife should not
be dealt separately. Explanation II dealing with judicially separated wife
was retained.
8.. The Law Commission retained the recommendations of 42nd Report in

regard to sexual offences committed by a public servant, superintendent
or manager of a woman
s or children's institution and a person on the
management of staff of a mental hospita1.
9. The Law Commission opined that the discretion of the Court to award
punishment should remain unfettered. The maximum limit of punishment
was life imprisonment or punishment upto 10 years.
10. In cases of gang rape, where more than one person raped the woman
one after the other, each one of them should be punishable with a
maximum punishment of 10 years rigorous imprisonment. Similar
punishment was also suggested in cases of minor rape, rape of a
pregnant woman and rape by a Police Officer.
Arrest and Investigation
1. The Law Commission suggested the addition of a proviso to clause (1)

of section-46 Cr. P.C., dealing with the manner of arrest of a person,
which would spare a woman the indignity of being touched by strange
men. Thus, a male Police Officer could lay hands on a woman being
arrested only in exceptional circumstances.
2. The Law Commission recommended the addition of section-417-A in

Cr.P.C. for keeping a woman under detention in women
s or children
s
homes.
3. The Law Commission considered that woman Police Officers alone

should interrogate female victims of sexual offences. They also
13
recommended the additions to section-160, Cr. P.C. to provide that the
statement of the rape victim, when she is under 12 years of age should
be recorded by a female Police Officer or a person interested in welfare
of women or children as recognized by the State Government.
4. The Law Commission emphasized that the interrogation under

section-160 (1) of Cr. P.C., should take place at the dwelling place only
and the Police Officer, who violates such provisions should be
punishable under the new Section 166-A, IPC with one year punishment
or fine or both. The Law Commission also recommended a woman
should not be interrogated after sun set and before sunrise and a social
worker should be permitted to be present during interrogation.
5. The insertion of section-167-A to IPC was also recommended, which

punishes the failure of non-recording of any information regarding any
cognizable offence.
Medical Examination of Accused and the Victim
The Law Commission observed that procedures for examining the

accused and victim are quite cursory and tardy. Hence, they recommended
addition of sub-section (1A), (1B), (1C) and (1D) to section-53, Cr. P.C.,
which deals with the medical examination of the accused in all cases and
the insertion of a new section 164-A to Cr. P.C. to improve in the Camera
existing and provisions regarding of the medical examination of the victim.
Trial in Camera and Publication of Proceedings during Trial

1. The Law Commission endorsed the need of trial in camera and

recommended the addition of proviso (2) to section-327 Cr. P.C., which
provides for the court to be open.
2. The Law Commission felt that in cases of rape to avoid the

embarrassment to the victim due to the publicity during the trial new
section 228-A, should be added to the IPC, which provided punishment
in cases of violation of prohibition regarding publicity of proceedings.
Evidence
The Law Commission recommended various changes in law relating to

burden of proof and character of the woman.
1. Insertion of a new section 111-A was recommended in the Indian

Evidence Act, 1872, which shifted the burden of proof on the accused
instead of prosecutrix, that the act was done with the consent of woman.
2. The Law Commission recommended that in section-155 (4) of the

Indian Evidence Act, the evidence of sexual relations of prosecutrix
other than with the accused should not be permitted . On similar lines,
addition of clause (4) to section-146 was recommended, which would
render it unpermissible to put questions in cross-examination of the
prosecutrix as to her general immoral character.
3. The Law Commission recommended the insertion of a new

section-53-A, which rendered the evidence related to prosecutrix
s
previous sexual relations with any other person than the accused,
irrelevant.
15
THE BILL OF 1980, JOINT PARLIAMENTARY COMMITTEE
REPORT OF 1982 AND THE AMENDMENT ACT OF 1983.
After considering the recommendations of the Law Commission,

Criminal Law (Amendment) Bill, 1980 , was introduced in Lok Sabha on
12th August, 1980. The Bill was referred to a Joint Committee of both
Houses on 23rd December, 1980. The purpose of Bill of 1980 was to
make rape law more stringent and to create conditions in which the victim
is not inhibited by fear or embarrassment to prosecute the offender.
The Bill departed from the recommendations of 84th Law Commission

mainly in the following ways :
1. It shifted the burden of proof on the accused only in cases of custodial

rape, gang rape, rape of a minor and pregnant woman.
2. Only a married woman could plead the misconception of fact in clause

fourthly to section-375.
3. Punishments to section-376-A, B, C, were enhanced to 5 years.
4. It included sections-375, 376, A, B, C under the heading

Sexual
Offencesin the IPC.
The Joint Committee held forty four sittings in various parts of the
country. It invited memoranda from Goverments, voluntary organizations,
lawyers, press organizations, bar association and public spirited
individuals. The Joint Committee submitted its report on Nov. 2, 1982.
Unfortunately, the Committee took few grave retrogressive steps :
1. The Joint Committee did not accept the words

free and voluntary
consentin place of the word
consentin section-375.
2. The Joint Committee reduced the age of marital rape from 15 years
to 12 years. If this suggestion had been incorporated in the Amendment
Act, it would have led to a retrogressive leap to 1891, when the age of
consent for marital rape was 12 years.
3. Though the Committee inserted section-376-A to acknowledge the

rape cases of judicially separated wife, it diluted the punishment upto 2
years imprisonment only. The Committee took the view that this could
help in the re-conciliation between the spouses.
The Criminal Law (Amendment) Bill as reported by the Joint

Committee was introduced in Lok Sabha on Nov. 18, 1983, by the
Minister of Home Affairs. The Bill took almost 3 years to be introduced in
Lok Sabha, which can be considered as a reflection on the seriousness of
the Government's approach towards it.
The Debates heavily focused on the publicity during the proceedings,

punishment, particularly in custodial rape, marital rape cases and
compensation to the rape victim. It was observed that prohibition of
publicity will make the purpose of the section futile as it was severely cut
off the scope for mass movements as were witnessed in Mathura Case. It
was stated that section-228-A had gone too far in protecting the woman
from publicity as it curtailed the possibility of all help, which press can
render in building mass awareness and agitations in rape cases.
The House was divided over the issue of marital rape and the
punishment to be awarded in rape case. On marital rape, there were many
suggestions that it should not be treated as an offence at all whereas few
17
members were in favour of its recognition as an offence. Regarding
punishment, few members recommended the infliction of capital
punishment in rape cases, while few others found the punishment already
provided by law was too severe. Rapes in custody were severely criticised
and many members recommended that more severe punishment should be
prescribed for such cases. Few members also reacted that all custodial
intercourses cannot be treated as rape because some element of consent
could be present in such cases. Compensation to the rape victim found
firm support in the Lok Sabha. The reactions of Lok Sabha members are a
good reflection on the patriarchal influence and perceptions in our society.
THE EXISTING LAW
In 1983, after being debated in Lok Sabha for three days and in Rajya
Sabha for two days, the Bill finally received President
s assent on Dec 25,
1983 and culminated into the Criminal Law (Amendment) Act, 1983,
which is the existing law at present.
The legal definition of rape as incorporated in section-375 of the

Indian Penal Code, 1860, reads as follows :
375. Rape A man is said to commit rape, who, except in the case
hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the six following descriptions :
First Against her will.
Secondly Without her consent.

Thirdly With her consent, when her consent has been obtained by
putting her or any other person in whom she is interested in fear of death
or of hurt.
Fourthly With her consent, when the man knows that he is not her
husband, and that her consent is given because she believes that he is
another man to whom she is or believes herself to be lawfully married.
Fifthly With her consent, when, at the time of giving such consent, by
reason of unsoundness of mind or intoxication or the administration by him
personally or through another of any stupefying or unwholesome
substance, who is unable to understand the nature and consequences of
that to which she gives consent.
Sixthly With or without her consent, when she is under sixteen years of
age.
Explanation Penetration is sufficient to constitute the sexual intercourse

necessary to the offence of rape.
Exception Sexual intercourse by a man with his own wife, the wife not
being under fifteen years of age, is not rape.
Ingredients of Rape
19
1. Against her Will
There must be the utmost vehement exercise of every physical means

and faculty within a woman
s power to resist the act of the aggressor, to
resist the penetration and this must be shown to persist until the offence is
committed. The opinion of medical experts shows that it is very difficult
for a person to rape single handed, a grown up and experienced woman
without meeting stiffest possible resistance from her.
Referring the first clause

Against her Will
, the phraseology has
never been defined by the act , except to assume the meaning there from
after the meaning of
willand
against
, where will is the faculty of mind
of conscious and particularly of deliberate action , the power of control of
mind over its own action or proper exercise of one
s volition in making a
decision. The word,
will literally means power of choosing or
determining, volition or choice and the expression.

Against the Will
, as appended under section 375 IPC clearly refers
to a woman (who is ) in full sense or full possession of her sense and
reason or who in other words, is fully conscious normal and reasoning
accompanied with deliberation , after mind has weighed, as in a balance ,
the good and the evil on each side, with the existing capacity and power to
withdraw the assents according to one
s will or pleasure.
But the every act done against the will of a person, no doubt , is done
without her consent ; but an act done
without her consentof a person is
not necessarily against her will which expression imports that the act is
done in spite of the opposition of the person to the doing of it.
A victim
s struggle and protest against the offenders clearly proves
commission of rape was against her will. The will and consent would
ordinarily refer to the same act of mind. They are both functions of
volition, but as the term consent is susceptible of some variation in
construction, and may include a subsequent consent which the word will
necessarily exclude.
The Indian penal code draws distinction between act done against the
will of a person and an act done without the consent of a person. In view
to this distinction between the two phraseology
against the willand
without the consent

, section 90 IPC, helps in distinguishing the two
concepts therefore every act done against the will of a person is an act of
doing a thing or an act done without his consent, but an act done
without
her consent of a person is not necessarily against her will which
expression imports that the act is done in spite of the opposition of the
person to the doing of it.
While the term will refers to the previous or concurrent consent, the
second clause without the consent may include also a subsequent
consent. There may, moreover arise in a case where the consent may not
be vitiated by any one of the reasons contemplated in section 90 of the IPC
and still the act may be rape, because it was against the will of a woman
ravished.
Rape of tender aged person between 2 months to 7 years old would

amount to rape against her will, while rape of girl between 7 to 8 years or
above but below 16 years would amount to rape against her will and as
well as without the consent of the victim.
21
In the case of rape one of the most and foremost circumstances
generally expected in the evidence is resistance from the victim. Any
unwilling victim of the offence is expected to receive injuries on her
person so also the accused is also expected to receive the same. Under
such circumstances , interference of unwillingness or the act of rape was
against the will of the victim can be inferred well, for virginity is the most
precious possession of an unmarried girl and she will never willingly part
away with this proud and honour .
2. Without her consent
Section 375, IPC secondly lays down that A man is said to commit
rapeif he has sexual intercourse with a woman without her consent .
The word consent has not been defined by the Indian Penal Code but
its meaning has been gathered from the facts and the circumstances of the
commission of the offence. While dictionary meaning of the consent is to
agree in sentiment, permit or approve, acquiescence .Consent is an act of
reason, accompanied with deliberation, the mind weighing as a balance,
the good and evil on each side. Therefore, one cannot consent to a thing
unless one has a knowledge of it. It is an agreement of opinion on the part
of all the concerned.
CONSENSUS EST VOLUNTAS PLURUIUM AD QUOS RES

PERTINENT, SIMUL JUNCTA , means consent is conjoint will of many
(more than one) persons to whom things belongs. Where there is consent
then , that consent makes law CONSENSUS FACIT JUS hence where
rape is committed with consent ( where meeting of mind to do such act

),there is no rape.
Referring to section 375 IPC, woman can be said to have consented to

the act only when she has submitted herself willingly and freely, while in
free and unconstrained possession of her physical and moral power to act
in a manner she wanted, therefore consent implies the exercise of a free
and untrammeled right to forbid or withhold what is being consented to; it
always involves a voluntary act and conscious acceptance of what is
proposed to be done by another and concurred in by the former. A person
is said to have consented if she is aware of the act and the consequences of
such an act and is ready to bear the same.
IPC does not define the word consent but section 90 IPC gives
indirect meaning thereof so far it relates to the word consent as
contemplated in section 375 IPC.
Where the prosecutrix accompanied the accused to the house of

someone and stayed there for about a week and did not disclose the
incident to anybody even without being under any threat, inference could
be drawn that she was a consenting party and the accused was held to be
entitled to acquittal. The prosecutrix, did not disclose the name of the
accused to her parents early though she knew him. She disclosed the name
only when the doctor found that the profuse bleeding from her private part
was due to sexual intercourse, it was held that the prosecutrix being a
consenting party and she being not a minor, it was not a case of rape.
Where a blind helpless girl was raped by the accused, it was held that
expression consent cannot be equated to inability to resist out of
23
helplessness and absence of injuries on the victim also does not by itself
amount to consent by her.
3. With her consent, when her consent has been obtained by putting
her or any person in whom she is interested in fear of death or of
hurt.
Section 375 , clause third , states that a man is said to commit rape
when he has sexual intercourse with her consent, when her consent has
been obtained by putting her in fear of death or of hurt. Such fear might be
to put any person in whom she is interested.
While IPC defines, death under section 46 and hurt under section 319
IPC, the code does not define what amounts to
fear
. It means a
distressing emotion aroused by an impending pain and danger and evil and
a specific instance of such a feeling or something of which one is afraid of
or that causes fright or apprehension. For eg. unless the prosecutrix
surrenders her person, the accused might kill her son is an apprehension or
fear of death.
Surrender as a passive consent might also be from threat angle or black

mailing of a girl. The word fear concerns and pertains to the victim of the
offence who received it from the person who uses the criminal force so as
to change the feeling of prosecutrix without her consent in order to commit
the offence, in such a way that by use of force she will be frightened so as
to compel her to surrender her body unwillingly. In view of this , a force
so used need not be an actual physical force , may be direct or indirect
force say- holding out minor child and threatening to kill the minor unless
she submits to the offender for sexual intercourse an indirect threat or a

sort of fear mounted to her indirectly without direct physical force. Thus
absence of injury , in the rape case , may not amount to consent
sometimes, for absence of injury may or may not indicate the absence of
physical violence and absence of physical violence , by itself, does not
mean that the sexual intercourse has not been committed forcibly.
4. With her consent under a mistaken belief.
The fourth clause gives that he whoever induces a woman to have

sexual intercourse with him by personating as her husband commits rape.
Thus if the consent under misconception of facts has been obtained, or
when the consent is obtained by impersonating as her husband, the offence
under the section has been committed which is punishable under section
376 I.P.C.
It is called as disgusting clause, for the clause gives offended taste

of moral sense of Indian woman. May one ask,
how is it possible for a
woman to be mistaken by a stranger as for her husband
?. This type of
contingency is conceivable where a man approaches the victim during
sleep, or in the dark, or under circumstances when recognition is
impossible, but she could detect by voice, in the circumstance the ravisher
might intend to go further by using force to complete the act in spite of
resistance and after detection.
Two things are possible; A) if she discovers the mistake before

consummated and does not resist, the act would probably ceased to be a
rape for consent can be inferred from the non resistance and; B) if
25
detected after the consummation, of course, the man approaching her is
guilty of such imposition for he intended to pass for her husband.
Under such situation consent given by a woman to a man under

misconception of facts that he was her husband was, of course, no consent
at all. In order that section 375, fourthly, Indian penal code may be
attracted, the consent by the woman must have been given because she
believes that the offender is another man to whom she is married or
believes herself to be lawfully married. When the consent by the woman to
the accused having sexual intercourse with her was not given under the
belief that the accused was another person to whom she believed herself to
be married but where the woman believed that she had been married to the
accused, clause fourth will not be applicable.
5. With her consent due to intoxication
In view of clause fifth of section 375 IPC, rape can undoubtedly be

committed on woman while she is in a state of unconsciousness which
might have occurred in an ordinary course or as a result of administration
of Narcotic , Intoxicating or Anesthetic drugs. It is accepted fact that it is
very difficult, unless over powered, to rape a healthy woman in full
sense. She is bond to offer resistance and a struggle is invariably followed,
as a result of which injuries are bound to be found on the body of victim,
on the person and even on the part of the accused.
But in case of unconscious state of mind due to administration of drug

or any other stupefying things of unwholesome substance and where is
unable to understand the nature and consequences thereof , there is
likelihood of absence of violence or any evidence of struggle in

committing the offence of rape as the victim has been incapacitated by the
administration of narcotic drugs and consent obtained under such
incapacitated circumstances is no consent and the offence under section
375 is said to have been committed against her.
Where a girl was going for study, appellant took her to a lonely house
hill and she was made to sit and appellant forcibly thrushed in her mouth a
liquor bottle and she was made to drink the liquor. Thereafter appellant
undressed her and committed rape on her. It was held that the accused
person committed rape on the prosecutrix forcibly and without her
consent.
6. With or without her consent, when she is under sixteen years of age.
This is one of the important clause under the section and enacted with
the view to protect minor girl of the society. The clause simply declares
that an act done even though with the consent of a child under 16 years of
age would be a rape, her consent had precocity being both immaterial .The
fact that such a girl can discriminate between right and wrong and invited
the accused to the act are both wholly irrelevant, for the policy of law is to
protect children of such immature age against sexual intercourse.
The age limit in this clause was raised to 16 years by an amendment of

the Act in 1949.The Indian Penal Code has raised the age twice earlier
prior to present standard. The age limit was raised from 10 to 12 years by
the Indian Criminal law Amendment Act of 1891. It was again raised from
12 to 14 years by the Indian Penal Code Amendment Act of 1925. The age
27
limit at present is 16 by an Act of XLII of 1949. The limit raised in age is
to protect children from pre mature cohabitation and prostitution in view
of our society which is afforded by other sections of IPC.
The Criminal Law Amendment Act has substantially changed sections

375 and 376 of the IPC. Several new sections have been introduced
therein- viz., sections 376(A), 376(B), 376(C), 376(D) of the IPC.
Section- 376(A) punishes sexual intercourse with wife without her consent
by a judicially separated husband.
Section- 376(B) punishes for sexual intercourse by a public servant with a

woman in custody.
Section- 376(C) punishes sexual intercourse by superintendent of jail,

remand house, etc. whereas,
Section- 376(D) punishes sexual intercourse by any member of the

management or staff of a hospital with any woman in that hospital.
These new sections have been introduced with a view to stop sexual
abuse of women in custody, care and control by various persons- which
though not amounting to rape were nevertheless considered highly
reprehensible.
PUNISHMENT OF RAPE:
Section 376 itself is a substantive one as it describes as to how many

years of imprisonment will be suffered by a person who commits a rape.
In view of section 376(2) punishment appended therein shall be inflicted
upon a convict with imprisonment of either description for a term which

shall not be less than seven years but which may be for life or for a term
which may extend to ten years and shall also be liable to fine unless the
women raped is his own wife and is not under twelve years of age, in
which cases, he shall be punished with imprisonment of either description
for a term which may extend to two years or with fine or with both. The
court may, for adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment for a term of less than seven
years. When the offence is committed against those listed under section
376(2) (a) to (g) i.e., Whoever
a) being a police officer commits rape-
i) within the limits of the police station to which he is appointed; or
ii) in the premises of any station house whether or not situated in the police
station to which he is appointed; or
iii) on a woman in his custody or in the custody of a police officer

subordinate to him; or
b) being, a public servant, takes advantage of his official position and

commits rape on a woman in his custody as such public servant or in the
custody of a public servant subordinate to him; or
c) being on the management or on the staff of a jail, remand home or other

place of custody established by or under any law for the time being in
force or of a woman's or children's institution takes advantage of his
official position and commits rape on any inmate of such jail, remand
home, place or institution; or
29
d) being, on the management or on the staff of a hospital, takes advantage
of his official position and commits rape on a woman in that hospital; or
e) commits rape on a woman knowing her to be pregnant; or
f) commits rape on a woman when she is under twelve years of age; or
g) commits gang rape,
shall be punished with rigorous imprisonment for a term which shall not be
less than ten years but which may be for life and shall also be liable to
fine:
Provided that the court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment of either
description for a term of less than ten years.
Explanation 1 - Where a woman is raped by one or more in a group of

persons acting in furtherance of their common intention, each of the
persons shall be deemed to have committed gang rape within the meaning
of this sub-section.
Explanation 2
Women
s or children
s institutionmeans an institution,
whether called an orphanage or a home for neglected woman or children
or a widows' home or by any other name, which is established and
maintained for the reception and care of woman or children.
Explanation 3
Hospital means the precincts of the hospital and
includes the precincts of any institution for the reception and treatment of
persons during convalescence or of persons requiring, medical attention or
rehabilitation.
The main features of the Criminal Law (Amendment) Act, 1983 , are as
follows:
1. The Act, for the first time recognised the existence of aggravated forms
of rape, viz. rape of minor, gang rape, rape of a pregnant woman,
custodial rape committed by police Officer, public servant, a person on
the management or staff of jail, remand home, women
s or children
s
home, hospital etc. It also provided enhanced punishment under
section-376 (2) for cases of aggravated rape.
2. The Act also distinguished the rape of a judicially separated wife under
section-376-A and provided for a punishment, which may exceed to 2
years alongwith imposition of fine.
3. Prescription of mandatory minimum punishment can be regarded as the

most important achievement, by 1983 Amendment Act. It enhanced the
punishment by providing the mandatory minimum imprisonment of
either description for 7 years under section-376 (1) in general rape cases
along with imposition of fine. section- 376 (2) took care of aggravated
rape cases and provided a mandatory minimum of 10 years rigorous
imprisonment along with the imposition of fine.
4. A new clause
fifthlywas added to section-375, which made the
consent of a woman of unsound mind or the consent, which is given
under intoxication or administration of some stupefying or unwholesome
substance, irrelevant against a rape charge.
5. Section-327, Cr. P.C. was amended to include sub-sections (2) and (3).
Clause (2) provided that in case of inquiry into and trial under Sections
31
375, 376, 376-A, 376-B, 376-C and 376-D, shall be conducted in
camera. clause (3) prohibited the printing and publication of any matter
in relation to the proceedings covered under c1(2), without the previous
permission of the Court.
6. A new section 228-A was inserted in the Indian Penal Code, which
made the disclosure of identity of rape victim penal except under
permission granted for publication by the victim. The Officer in charge
of Police Station or the Police Officer investigating such case can also
give permission by a written order to such publication.
7. In the Act, all recommendations of 84th Law Commission Report

regarding the provisions relating to evidence, were not accepted, but for
the provision relation to the burden of proof, which was accepted partly.
To this effect, a new section 114-A was inserted in the Indian Evidence
Act, which shifted the burden of proof on the accused in aggravated
rape cases covered under section-376, IPC.
8. Few changes were made in the First Schedule to the Criminal Procedure
Code, which made the offence of rape as cognizable and non-bailable.
Marital rape remained non-cognizable and bailable. The offence under
section-228-A was also made cognizable and bailable. The offence
under section-376, B, C and D are cognizable and bailable, but no arrest
can be made without a warrant or without an order of a Magistrate.
9. The age of consent is 16 years in general rape case, 15 years in marital

rape case and in the case where the victim is below 12 years,
section-114-A of Indian Evidence Act is applicable.
10. The position of wife remained same in the amendment of 1983 as it

was in 1891 except for the three years increase in the age of consent in
marital rape cases unrecognised by the Indian Penal Code.
Flavia Agnes observed in her article, that the 1983 Act was an
inadequate answer to the campaign for change in rape laws and what
started with a bang ended in a whisper. But at the same time, the Act was
welcomed as a progressive step and it symbolised the beginning towards
future changes.
THE SUGGESTIONS PROPOSED BY THE LAW COMMISSION

OF INDIA
Despite many progressive changes introduced by the 1983 Act, there

remained many lacunae in the existing law. To fill up the gaps, the
National Commission for Women (NCW) made certain suggestions, which
were considered by the Law Commission in its 156th Report on Indian
Penal Code.
The main recommendations of the 156th Law Commission Report are as

follows
1. The Commission was of the view that the offence of rape should be
retained in the IPC subject to a few modifications.
2. The Commission recommended that clause

thirdlyto section-375,
IPC, be modified to include words-
or of any other injury
. These
words expand the scope of the clause to provide for situations of rape
by persons in position of trust, authority, guardianship or of economic or
33
social dominance. The Commission was of the view that such change
will cover the cases of incestuous abuse where the victim is totally
dependent on the offender.
3. The Commission recommended that the age limit prescribed in the

clause
sixthlyto section-375 IPC, be raised to 18 years from the
existing 16 years.
4. The Commission did not endorse the view of NCW that the age limit for
wife in the exception to section-375 IPC, should be raised.
In a move to rectify those lacunae, a NGO called

Sakshi
, approached
the Supreme Court of India for directions concerning the definition of the
expression
sexual intercourseas contained in S-375 IPC. The Supreme
Court directed the Law Commission to examine the issues involved. In
response to this order of the hon
ble Court,the Law Commission brought
forth its 172nd Report on Review of rape laws in 2000.
The main recommendations of the 172nd Law Commission Report are as

follows
The Substantive Law
1. The Commission strongly recommended making the provision of rape

gender neutral because not only women and girls, but young boys are
also subjected to forced sexual assaults, which causes no less
psychological trauma to a boy than a girl.
2. The Commission felt that it was necessary to include under the

definition of rape not just penile penetration but penetration of any other
part of the body (like finger or toe) or by any other object. The modified
explanation makes it clear that penetration to an extent is sufficient to
constitute rape.
3. The Commission has retained the marital exception to rape though

Sakshiwanted its deletion. The Commission found it to be excessive
interference with the marital relationship but raised the age of wife from
fifteen to sixteen years.
4. The Commission has proposed the addition of a new proviso(while

keeping the existing provisions proviso II) to section-376 IPC providing
that when the sexual assault is committed by the father, brother,
grandfather or any other person in position of trust or authority towards
that person, the punishment should be severe.
5. For aggravated minor rapes, the Commission raised the age of the
victim from 12 years to 16 years.
6. The Commission has retained both

adequate and special reasons
clauseto section-376 IPC.
7. Retaining section-376 IPC, rape by husband during judicial separation,

the Commission enhanced the minimum punishment as not less than 2
years but which may extend to 7 years.
8. Retaining sections-376-B, 376-C, 376-D, the Commission

recommended that an explanation should be added which covers all
types of sexual intercourse, as described above for section-375.
35
9. The Commission recommended the insertion of a new section 376 E
which gives the definition of
unlawful sexual contact as including
many other acts of sexual abuse e.g., touching directly or indirectly,
with a part of body or an object any part of the body of another person.
10. The commission recommended the deletion of section-377 IPC as in

the light of the proposed modifications, it will not be required.
11. The Commission has reiterated the suggestion made in the 84 th Law
Commission Report that a new section 166-A should be inserted in the
Code. The proposed section punishes a public servant who knowingly
disobeys the law prohibiting him from requiring the attendance at any
place of any person for the purpose of investigation into any offence or
during the course of conduct of investigation, he knowingly disobeys
directions of law and such an act results in prejudice to another person.
The Code of Criminal Procedure, 1973
1. The Commission recommended that sub-sections (3) and (4) be inserted

in section-160, Cr PC to the effect that the statement of the victim shall
be recorded by a female police officer, in case a female police officer is
not available, by a female Government servant available in the vicinity
and in case a female Government servant is not available, by a female
authorised by an organisation interested in the welfare of women or
children. Where either of these alternatives are not available, the officer
in charge of the Police Station shall record the reasons in writing and
record the statement of the victim in presence of her relative.
2. Substitution of the proviso to sub-section (1) of s-160, Cr PC was also

recommended for raising the age limit from 15 years to 16 years.
3. The proviso to section-160, Cr PC should provide for recording of the

statement of the victim, in presence of one of her relatives of her choice,
who shall not interfere with the recording of the statement.
4. The Commission recommended the insertion of a new section 164-A, Cr

PC for medical examination of the victim with her consent, by a
Medical Practitioner, during investigation, so that the valuable medical
evidence is not destroyed due to the delay etc.
5. The Commission also recommended the insertion of a new section

53-A, Cr PC, to provide for the medical examination of the accused
without delay.
6. The Commission recommended strongly that the proviso to section-273,

Cr PC be modified, so that the minor victim is not confronted by the
accused while at the same time ensuring the right of the accused to
cross-examine.
Indian Evidence Act, 1872
1. The Law Commission recommended the insertion of section-53-A,

which provides that where consent of the victim is in issue, her past
sexual experience with any person will not be relevant.
37
2. The Commission was of the view that section-146 (4) should be inserted
prohibiting the questions regarding general immoral character of the
victim.
The Code of Criminal Procedure (Amendment) Act, 2005
Due to the liberal interpretation of section 53 CrPC, it became a

mandatory practice for a rape victim to be examined by a woman doctor
only (wherever woman doctors were available). This was meant to make
the victim more comfortable in the hands of a woman doctor. But the small
number of woman doctors (especially in rural hospitals), and their
workload with maternity services, often resulted in delays in the medical
examination of a victim of rape. Even when a doctor eventually became
available, his/her busy schedule often meant that only a cursory
examination was performed and the collection of evidence was inadequate
or improper. As there was no explicit law dealing with these issues, there
was much confusion regarding who (male or female doctor) should
examine victims of rape and the extent of such examinations
(documentation of injuries and evidence / collection of evidence).
The Criminal Procedure Code (Amendment) Act of 2005 introduced

specific sections for medical examination of victims of rape ,medical
examination of those accused of rape and investigation by judicial
magistrates of custodial rape and deaths.
Section 164(A) CrPC explains the legal requirements for medical

examination of a victim of rape. One of the main elements of this is that
the consent of the victim is mandatory and should be part of the report.
Only with the consent of the victim (and in the case of a minor by the
parent or guardian) may the examination be conducted by any registered
medical practitioner (only allopathic doctors registered under the Medical
Council of India (MCI)) employed in a hospital run by the government or a
local authority, and, in the absence of such a practitioner, by any other
registered medical practitioner. Thus this explicit provision mandates that
any registered medical practitioner with the consent of the victim may do
the examination, solving the difficulties caused by the requirement that
only government doctors should do this examination.
It also provides that when no woman doctor is available, there is no

bar against a male doctor carrying out the examination, if the victim
consents. Though getting the examination done by a woman doctor is
ideal, the law does not mandate it, keeping in mind that a medical
examination should not be postponed because of an extreme situation such
as the want of a lady doctor. The same section mandates that a medical
examination must be carried out within 24 hours of the police receiving
information, thus recognising this as a medicolegal emergency and putting
a timeframe for the investigating officer. The medical examination should
be carried out without any delay and a
reasonedreport be prepared,
recording the consent of the victim, her name and address, the person by
whom she was brought, her age, a description of the materials collected
from the victim for DNA profiling, marks of injury if any, her general
mental condition other material particulars in reasonable detail, and the
exact time of commencement and completion of the examination. The law
mandates that the report should state precisely the reasons for each
conclusion made. Also, it should be forwarded without delay to the
39
investigating officer who, in turn, shall forward it to the magistrate
concerned.
Section 164A CrPC explicitly states that nothing in this section shall
be construed as rendering lawful any examination without the consent of
the woman or any person competent to give such consent on her behalf.
This makes it clear that consent is essential and nobody can force a victim
to undergo a medical examination without her consent, not even the Court
Section 53(A) CrPC sets down the requirements of medical

examination of a person accused of rape. Prior to this amendment there
was no explicit law defining the details of medical examination. There
were no guidelines on whether age estimation had to be done, whether a
potency examination was sufficient, whether evidence of injuries, stains,
trace evidence or DNA evidence was required to be collected, etc. So
there was confusion on whether to take samples of blood, hair, stains, nail
clippings, etc. The explanation to this section now clearly states what must
be included in this medical examination. A detailed medical examination is
to be carried out by a registered medical practitioner (only allopathic
doctors registered under the MCI) employed in a hospital run by
government or local authority - and in the absence of such a practitioner
within the radius of 16 km from the place where the offence has been
committed, by any registered medical practitioner acting on the request of
a police officer not below the rank of a sub inspector. By this it is clear
that the law recognises the need for an immediate medical examination of
the person accused of rape.
The medical examination should be carried out without any delay and
a
reasonedreport be prepared recording the name and address of the
accused, the person by whom he was brought, the age of the accused,
marks of injury if any, a description of materials collected from the
accused for DNA profiling, other material particulars in reasonable detail,
and the exact time of commencement and completion of examination. The
law mandates that the report should state the reasons for each conclusion
arrived and this report should be forwarded without any delay to the
investigating officer who in turn shall forward it to the magistrate
concerned.
Amendments are also made to section 176 CrPC regarding an inquiry

by a magistrate into the cause of death, by adding section (1A) by which if
(a) any person dies or disappears, or (b) rape is alleged to have been
committed on any woman, while such person or woman is in the custody
of police or in any other custody authorized by the Magistrate or the Court
under this Code, in addition to the inquiry or investigation held by the
police, an inquiry shall be held by the Judicial Magistrate or the
Metropolitan Magistrate, as the case may be, within whose local
jurisdiction the offence has been committed. This amendment now
mandates that a judicial magistrate must investigate all cases of custodial
rape and deaths in custody.
The Code of Criminal Procedure (Amendment) Act, 2008
Many victims of rape do not want to register a police complaint due to

the cumbersome procedures that it involves, and the unsupportive
41
atmosphere at police stations. Further, they must narrate their ordeal to
male police officers. Even if a woman musters up the courage to initiate
criminal proceedings, there are inordinate delays in the trial of the case,
with needless adjournments. She is always psychologically harassed in
open courts, undergoes long trials and is forced to repeatedly describe her
traumatic experiences in front of people who view her testimony with
suspicion. It has also been found that in most cases the accused gets
acquitted for lack of evidence. The courts have also failed to provide
immediate and long term relief to the victim, let alone punishment to the
accused. All these issues were looked at when the CrPC was amended in
2008. These amendments came into effect in 2009.
1. A provision has been added to section 157 CrPC dealing with the
procedure of investigation in relation to the offence of rape. The
recording of the statement of the victim shall be conducted at the
residence of the victim or in the place of her choice and, as far as
practicable, by a woman police officer in the presence of her parents or
guardians or near relatives or social worker of the locality.
2. The amendment to section 173 CrPC now mandates that investigation in

relation to rape of a child must be completed within three months of the
date on which the information was recorded by the officer in charge of
the police station. Also, when the report is forwarded to a magistrate it
should contain the report of the medical examination of the woman
where an investigation relates to an offence under sections 376, 376A,
376B, 376C, and 376D IPC.
3.The amendment to section 309 CrPC has the additional proviso that
when the inquiry or trial relates to an offence under sections 376 to
376D IPC, the inquiry or trial shall, as far as possible, be completed

within a period of two months from the date of commencement of the
examination of witnesses.
Though the CrPC amendment of 1983 to section 327CrPC itself

mandated in camera inquiry and trial for rape of an offence under section
376, 376A, 376B, 376C or 376D IPC, victims of rape were still not
comfortable in court proceedings. The 2008 amendment to section
327CrPC allows an in camera trial be conducted, as far as is practicable,
by a woman judge or magistrate. It also partially lifts the ban on printing or
publishing trial proceedings in relation to an offence of rape, subject to
maintaining confidentiality of the names and addresses of the parties.
The amendment of the CrPC in 2008 has brought in progressive

legislation by inserting a new section 357(A) CrPC, the victim
compensation scheme. All state governments in consultation with the
central government are to prepare a scheme for victim compensation. On
recommendation by the court for compensation, the district legal service
authority or state legal service authority must decide on the quantum of
compensation.
The Draft Criminal Law (Amendment) Bill, 2010, which seeks to

amend the law in the Indian Penal Code (IPC) pertaining to rape and
sexual assault, has found support among women's groups that have been,
for more than three decades, campaigning for a comprehensive piece of
legislation dealing with crimes against women and children.
The salient features of the Draft Criminal Law Amendment Bill 2010 are
as follows:
43
1.It widens the gamut of sexual assault committed by people in positions
of authority, private as well as public, and prescribes enhanced
punishment, which may include imprisonment for life as well. This
covers institutions such as hospitals, remand homes or any place of
custody.
2.The bill also provides for enhanced punishment for a term not less than
10 years for gang rape; sexual assault on pregnant or mentally or
physically disabled women; and maiming, disfiguring or endangering the
life of a woman while committing sexual assault.
3. Some positive aspects relating to procedures include recording of

offences, as far as possible, by a woman police officer; substitution of
the term
sexual intercourse with
sexual assault in the Cr.PC; and
recording of evidence of a person under 18 years of age, and who has
been assaulted, in such a manner that the accused has the right to
cross-examine but will not confront the victim; and substitution of

rapewith
sexual assault
. However, it does not specify the method
of cross-examination in order to ensure that the victim is not harassed
and victimised further.
4. Another important amendment suggested in the Indian Evidence Act is

on the issue of consent. The bill provides that in a prosecution for sexual
assault under Section 376 of the IPC, where sexual intercourse by the
accused is proved and the question is whether it was without the
consent of the person alleged to have been sexually assaulted, and if the
person states during examination in the court that consent was absent,
the court shall presume that there was no consent. Additionally, where
consent is under question, cross-examining the victim on character
issues or previous sexual experience for proving consent or the quality

of consent will not be allowed.
Seven women
s organisations, including AIDWA, the All India
s Conference, the Young Women
Women s Christian Association, the
Joint Women
s Programme, Guild of Service, the Muslim Women's Forum
and the All India Dalit Mahila Adhikaar Manch have welcome the draft,
including the conceptual shift in redefining rape, but expressed strong
reservations about some other aspects. They feel the draft Bill falls short
of reflecting the realities faced by victims of sexual assault and, therefore,
is not comprehensive. There are some areas, such as recognising the
offence of marital rape and prescribing punishment for the same, that have
not been covered. As such, sexual intercourse of any nature by a man with
his wife, the wife not being under 18 years of age, does not become sexual
assault. The bill also prescribes lesser punishment for a man who commits
sexual assault on his wife who is living separately.
The draft Bill of 2010 could not culminate into the final bill as it was
felt by the women activists and NCW etc. that it required certain
modifications. The modified version is contained in the draft Criminal Law
Amendment Bill 2012.
The salient features of Criminal Law Amendment Bill 2012 are as

follows :
1. The bill proposes to replace the term 'rape' with 'sexual assault' in the
Criminal Law (Amendment) Bill, 2012 in order to widen the scope of
this heinous crime. If this amendment is passed by Parliament, then rape
45
will become gender neutral as it has been treated as crime against
women and children.
2. The bill proposes that sexual intercourse by a man with his wife under
16 years of age is not sexual assault.
3.The age of consent has been raised from 16 years to 18 years in case of
sexual assault and the punishment will be minimum seven to ten years.
In spite of the efforts of the legislature to provide protection to rape

victims, the existing rape law has been hardly able to make even a dent in
the societal structure responsible for such violence. The ever escalating
graph of the rape crime demands serious probe in the area and then the
rape law should be designed accordingly.
47
CHAPTER- IV
ISSUES CONCERNING RAPE: A CRITICAL

COMPARATIVE ANALYSIS
Rape is unique among all crimes due to the treatment meted out to the
victims of rape. They pay a double price like other victims of violent
crimes, rape victims suffer the terrible toll of physical and psychological
injury, but unlike other crime victims, they also suffer the burden of defending
the legitimacy of their suffering. According to Burgess and Holmstrom ,
going to the Court, for the victim, is as much of a crisis as the actual rape
itself.Whereas rape wounds her dignity, curbs her individuality, destroys her
sense of security besides the severe physical injuries which may have been
inflicted upon her, the trial of rape forces her to re-live the traumatic
experience, in glare of publicity in a totally alien atmosphere, with the whole
apparatus and paraphernalia of the criminal justice system focused upon her.
The criminal justice system adopts the attitudes of disbelief and

hostility and treats the victim with suspicion instead of sympathy. Raped
women are subjected to an institutionalized sexism that begins with their
treatment by the police, continues through a male dominated system
influenced by the notions of victims precipitation and ends with the
systematic acquittal of many defacto guilty rapists.
At every step in a rape trial, there are systemic obstacles and discriminatory
attitudes for the victim, which result in complete negation of her human
rights. When a victim reports the case to police, she sets in motion a complex
and lengthy process of legal system. It does little to help the woman to
recover from the ordeal of rape; and much to compound the initial trauma she
experienced at the hands of the offender. The victim has to prove that she was
raped. Her prior lifestyle and sexual conduct are laid before the Court and her
consent or lack of it, is judged by her reputation. Her sexual character
determines the innocence or guilt of the accused.
As expressed by a rape victim ..
. I felt abused ... I felt accused guilty till proven innocent ... the defense
lawyer made it a big joke.
Victim links the experience of rape trial to being crucified. It is for

these reasons that the progress of a rape case through the criminal justice
system reflects a highly selective process of elimination. Only a fraction of all
cases are reported, only a fraction of reported cases are investigated and lead
to trial in the Courts and a very minute fraction of accused are convicted.
Rape is unique in that distinctly human factors have established the

legal elements of the crime, which must be proved beyond reasonable doubt.
These human factors discourage victims from reporting the crime to police
and make conviction especially difficult. They include a sexist society, the
historical role of women as
property
, obsolete rape laws, stereotyped legal
notions of how women should act when they are forcibly being attacked and
an unreasonable concern for the rights of the accused. The institutional nature
of sexism is so deeply embedded in the criminal justice system that it appears
Issues Concerning Rape: A Critical Comparative Analysis
to be more concerned with the threat of false accusation against the rapist
(which, in fact, is extremely rare), than the brutal fact that a woman was
raped.
The double victimization, which is thrust upon the rape victim by the
criminal justice system, is the mockery of all notions of justice in a civilized
society. An Indian Supreme Court Judge, while strongly condemning the
fossil formulaeapplied to rape cases referred to the treatment of rape

victims by the legal system as
the ravishment of justice
.
As remarked by Carol Smart,

the whole rape trial is a process of
disqualification of women and celebration of phallocentricism. She
comments that-
Legal decisions, affect many individual women, but the law also sets
and resets the parameters within which rape is dealt with more generally in
society. The legal form through which women
s accounts of rape are strained
constitutes a very precise disqualification of women and women
s sexuality.
Thus, the law reflects and shapes cultural and moral values prevalent in
the society. The societal attitudes mirror broad societal myths and stereotypes
about the nature of the offence and must be challenged as a matter of great
urgency.
The focus of law upon corroboration, consent and character of the

prosecutrix and a standard proof of guilt beyond reasonable doubt have
resulted in an increasing alienation of the general public from the legal
system. There are many problematic issues relating to conceptualization and
3
definition of rape and those relating to rape trial. In addition to the social
stigma consequent to the double victimization of raped women, these
complex problematic issues result in negation of rape victim's right to access
to justice and her human rights. Few of these crucial problematic issues are
discussed below.
ISSUES RELATING TO CONCEPTUALISATION OF RAPE
1. CLASSIFICATION OF OFFENCE: RAPE - SEXUAL OFFENCE

OR ASSAULT?
Generally, rape is perceived and treated as a sexual offence resulting from

the sexual arousal. Rape is considered to be nothing more than a source of
pleasure, as pleasure is presumed to be the object of sexual intercourse. The
pre-eminent value placed on female sexuality the quality that makes
women most valuable within the system of private property accounts for
the historical classification of rape as a sexual offence.
This approach takes women as primarily a sexual being whose main worth
lies in her potential for exclusive ownership and defines rape as a sexual
offence because it is an attack against men
s sexual property. This
interpretation also emphasizes the sexual nature of the act itself and suggests
that rape is primarily a sexual encounter between a man and a woman rather
than a form of sexual assault and if any harm occurs to the woman, it is
incidental to the real intention of the rapist, which is to give and receive
pleasure. This view also explains why marital rape is not considered as an
offence at all. Since husband is the proper owner of his sexual property
wife, he is at liberty to use her sexuality whenever he deems fit.
The confusion between rape and sex leads to numerous male fantasies of
rape being pleasurable to women and prohibit the efforts to gain a wider view
of rape. When rape is treated as a crime against property, status and character
of woman as her attributes, become the key factors in determining the
value of the private property, which remains directly proportional to the legal
redress that can be made available to the victim. Treating rape as a sexual
offence also pardons the imposition of special rules of evidence in rape trial
like consent and character of the woman.
The common perception of rape bears little relation to reality. Rape is

not sexual intercourse rape is force, rape is fear, rape is violence. Rape is
an act of aggression in which the victim is denied her self-determination. It is
an act of violence, which, if not actually followed by beatings or murder is
nevertheless always quite close to a life threatening situation. It is an act of
violation, which leaves woman in a state of humiliation, degradation, fear and
rage. Recent research findings contradict the traditional view and establish
that rape is an act of violence and aggression, reflecting the assailant's
feelings of inferiority and insecurity and is far from being sexually motivated.
At the most, rape can be considered as the sexual expression of frustration
and anger and the motivation to assert power and authority. It is a vain
delusion to perceive rape as the expression of uncontrollable desire of sex
rather it is a declaration of domination, whereby the rapist loses control over
his aggressive derives and not sexual passions.
5
In a male dominated world, women's experiences remain
unacknowledged and the inflicted physical pain, fear, intimidation and
coercion all inherent in rape remain completely ignored. Women
perceive rape as an assault, as an unprovoked attack on their physical person
and as a transgression of their right to sexual autonomy. Right to exclusive
control over one's own body and the freedom from unprovoked physical
interference by others are two of the fundamental rights guaranteed to all
persons in civilized societies. By rape a man forces a female to submit to his
physical desires and uses her body against her will. It becomes shocking for
the women to realize that when a physical assault is directed towards her
sexual organs as opposed to some other part of the body, it becomes a
sexual
offence
, which does not carry the same rights of redress as an assault.
Few feminists argue that rape is assault sans phrase, i.e. it is an assault
like any other assault and there is nothing specific or peculiar about the
choice of the offender for directing the assault towards the sexual organs of
the victim. The feminists, who favour rape as assault approach maintain that
there is no need for special sexual assault laws as it would reinforce the
special(unequal and lesser) status of women and it will be counter-

productive to the ultimate goals for women's equality.
The other school of thought favours the rape as sexual assault

approach, which stresses the violent character of rape without denying its
sexual overtones or undercurrents. These feminists are convinced that rape is
a power crime directed against the female sexuality. They maintain that for
the power rapist, the choice of the genitals as the object of aggression is not
accidental, but essential because he is interested in inflicting a particular kind

of damage on the victim. That is how rape constitutes sexual assault a
specific type of assault directed against women on account of their sexuality.
This view stresses the assaultive, non erotic nature of rape and perceives it as
a crime of power. According to Rosemarie Tong,
until such time as women
are the sexual as well as the social, economic and political equals of men, it is
best to define rape as sexual assault rather than as assault sans phrase
.
Majority of the legal systems in the world, recognise rape as

sexual
offencerather than a
sexual assault
. In United Kingdom, the Sexual
Offence Act, 2003 classifies rape as one of the sexual offences. In the Indian
Penal Code, 1860 , the offence occurred under the sub-heading
rapein
Chapter-XVI, dealing with
Offences Against Bodytill 1983. The Joint
Parliamentary Committee, 1982 had recommended that the subheading be
changed to
sexual offences
. The recommendation was accepted and it was a
clearly retrogressive step.
It is imperative that the offence must be seen in terms of violence than

sexuality. As long as rape is perceived as an act of sexuality rather than
aggression and hostility, it will continue to be interpreted as predominantly
pleasurable to both parties rather than harmful to the victim. It is emphatically
pointed out by all feminist scholars that rape should be removed from the
category of
sexual offences and reclassified as an assault for recognizing
and respecting the human rights of women. In a sexist society, as long as
eroticization of male dominance will persist, the chances for the likelihood of
sexual violence will remain high.
7
2. SEXIST BIAS AGAINST THE VICTIM
Our criminal justice system accords a unique position to the rape

victim, whereby she is treated with unparalleled suspicion. From the victim
s
perspective, the whole legal system crumbles to a complete failure as the
processes involved legitimize male violence instead of protecting her human
rights. There are legislative lacunae in rape law, but these barriers of
legislative flaws are pale before the barriers of prejudice faced by women,
who are raped. The crime of rape is unique in shifting the mens rea element
from the accused to the victim she must prove her innocence before the
rapist can be convicted.
In words of Sue Lees
If a woman reports a burglary or makes an insurance claim, her word is

not automatically doubted or her integrity questioned. But in a rape trial, it is
different.
From the judge to the convicted rapist, there is a common

understanding that female sexuality is problematic and that woman
s sexual
responsiveness is whimsical or capricious. Just as the rapist blames his
victim, so does the police, prosecutors, judges, juries, friends and relatives.
The disparity in how our system prosecutes rape, in contrast to other

violent crimes, mirrors the disparity in our society's attitude towards these
acts. Rape is only legally defined as a crime, but internalized and reproduced
as an acceptable social/sexual practice. Legally rape is a crime, but
culturallyrape does not exists.
The traditional legal thought continues to be tainted by two

misogynistic images of woman
(a) Woman as a liar indulging in false accusations of rape.
(b) Woman as a temptress leading to victim precipitated rape.
Woman as a liar - False Accusations of Rape
The male understanding of the concept of rape accepts it as one of the

most falsely reported crimes. In 1680, Lord Hale wrote
Rape is an accusation easily to be made and hard to be proved and

harder to be defended by the party accused, though never so innocent.
It is due to such remarks that a great deal of suspension is laid on the

trustworthiness of the victim and the actual occurrence of rape.
Further, the image of woman as a liar has skewed rape law in

directions that perpetuate patriarchal myths and fail to serve the legitimate
interests of the rape victims. Many legal scholars firmly believe that most
women at some point entertain
fleeting fantasiesof rape and that
it is easy
for some neurotic individuals to translate their fantasies into actual beliefs and
memory falsifications. It is so believed in the patriarchal set up that women
9
are only too eager to lie about what men have or have not done to them. As
explained by a leading expert on evidence, John H. Wigmore
...[E]rrant young girls and women... their psychic complexes are

multifarious, distorted partly by inherent defects, partly by diseased
derangements, partly by bad social atmosphere, partly by temporary or
psychological or emotional conditions. One form taken by these complexes is
that of contriving false charges of sexual offences by men. The unchaste (let
us call it) mentality finds incidental, but direct expression in the narration of
imaginary sex incidents of which the narrator is the heroine or the victim...
The real victim, however, too often in such cases is the innocent man.
It is because of such biased comments and understanding about women and

their sexuality that veracity of the rape allegations is doubted with maximum
suspicion and the whole energy and resources of criminal justice system get
focused in ascertaining whether rape was actually committed or is being
fabricated by the victim.
In a survey conducted by Human Rights Watch , forensic medical

doctors were interviewed, who believed that women lie about being raped. A
chief police surgeon in Pakistan told Human Rights Watch that women report
rapes in the hundreds,
but they lie
. This kind of approach generates
insensitivity and callousness in the attitude of medical experts, who conduct
medical examinations of the rape victims. The Head Medico Legal Officer for
Karachi revealed to Human Rights Watch a strong bias against the plight of
women victims. He asserted that women lie when they allege that they were
raped by an unassisted man and
women bluff, women make up stories,
women lie. He sympathized with the accused, who actually suffers in

fabricated rape cases. In the same study, many prosecutors exhibited similarly
biased and chauvinistic attitudes.
The notion of fabrication of rape cases is based on the belief that

women suffer
hysteria that can cause a neurotic victim to imagine things that
did not happenand they fabricate due to
spite, sexual frustration and other
unpredictable emotional causes
.
In rape cases of minor children, where the question of the victim

s
character or consent cannot become the issues, generally the issue of false
accusation or fabrication is raised on the grounds of enemities between the
families of the victim and the accused. In the Modi
s Toxicology and
Medical Jurisprudence , the section relating to
False Charges
, explain that
in India, how the parents adopt various methods to injure the genitals of little
girls to substantiate the allegation of rape. It further elaborates
It sometimes happens that a young girl has given consent to the act of
sexual intercourse, but she does not scruple to accuse her partner of rape in
order to save her own reputation, when she is discovered by a third party in
the actual act, or when she cannot account to her mother or other near relation
for injury to private part or blood or seminal stains on the garments. At times,
she permits the act and then brings a false charge of rape with the object of
blackmail. If a complaint in such a case is made a few days after the incident,
the case is probably one of fabrication...
11
As observed by many scholars, it is outrageous and against dignity of
the woman to make a false charge of rape for she knows that she would be
subjected to untold humiliation and social ostracism during investigation and
trial proceedings. As a matter of fact, there are not a disproportionate number
of false rape complaints. Moreover, the judicial scrutiny to which rape cases
are subjected in the courts, there are hardly any chances that a false case can
go through rather rape victims rarely go to the courts unless their case is air
tight.
Commenting on the Indian circumstances, the Supreme Court has enumerated

few of the main reasons in Bhoginbhai Hirjibhai v. State of Gujarat , which
rule out the possibility of fabrication of rape charges. They are as follows
A girl or a woman in the tradition bound non permissive society of

India, would be extremely reluctant even to admit that any incident
which is likely to reflect on her chastity had ever occurred.
She would be conscious of the danger of being ostracized by the

society or being looked down by the society, including her own family
members, relatives, friends and neighbors.
She would have to brave the whole world.
She would face the risk of losing the love and respect of her own
husband and near relatives and of her matrimonial home and happiness
being shattered.
If she is unmarried, she would apprehend that it would be difficult to

secure an alliance with a suitable match from a respectable or an
acceptable family.
It would be almost inevitable and almost invariably result in mental

torture and suffering to herself.
The fear of being taunted by others will always haunt her.
She would feel extremely embarrassed in narrating the incident to

others being overpowered by a feeling of shame on account of the
upbringing in a tradition bound society where by and large sex is taboo.
The Supreme Court of India has observed in State of Maharashtra v.

Chandraprakash Kewalchand Jain , that
courts must realize that ordinarily
a woman, more so a young girl will not stake her reputation by leveling a
false charge concerning her chastity
. The contention of false accusation has
been condemned by the Indian courts in several other cases.
Woman As a Temptress Victim Precipitated Rape
The Eve in the Garden of Eden myth has projected the image of
woman as a lying temptress - the Seductress, who destroys man's innocence.
Such identification of women reflects a cultural suspiciousness towards
women as
provocateursin any sexual encounter with men. The argument
that the woman provokes rape through her appearance gestures or behaviour
and thereby stimulates the man reinforces the view that men rape due to their
13
sexual desire and arousal. The concept of victim precipitation focuses
attention on the victim, who is regarded as the invitee or precipitator of the
crime. On the other hand, the rapist is considered as a decerebrate organism
unable to quell his lust in the face of such outrageous provocation.
According to Menachim Amir

s theory, the definition of victim precipitation
embraces (a) situations where the woman actually or apparently agreed to
intercourse, but retracted before the actual act or did not react strongly
enough when the suggestion was first made by the offender, and (b) risky or
vulnerable situations marred with sexuality e.g., the woman uses indecent
language and makes gestures that can be interpreted by the man as an
invitation to sexual relations.
Thus, where the woman aroused the offender without intention to

intercourse, agreed to have a drink or go for a ride with a stranger, or didn
t
resist her assailant
s sexual advances strongly enough, victim precipitation of
rape is considered to be present. The image of woman as a temptress or
seductress skews the law so as to adopt complicated interpretations of
consent and character, which disfavour women. According to the victim
precipitation theory, whether a woman is aware or not, her body is
continually speaking to men and especially to potential rapists. In words of
Prof. Menachim Amir
In the sexual sphere, a man can interpret verbal and non-verbal

behaviour on the part of a woman in such a way as being contrary to the
expectations of appropriate female behaviour or even as conflicting with the
whole image of a woman
s propriety. She will be placed, then, in the category
of a sexually available female. Thus, wrongly or rightly, a woman

s
behaviour, if passive, may be seen as worthy to suit action and if active it may
be taken as an actual promise of her access for one
s sexual intentions. The
offender then will react as seems appropriate toward such a woman.
The effect of this theory is to make the victim partially if not entirely
responsible for the occurrence of rape thereby diminishing the responsibility
of the offender. By voluntarily entering into sexually dangerous situations
e.g., allowing a man to escort her, to visit his apartment or to allow him a visit
to her house, agreeing to have a drink with him, etc., the woman makes
herself available and introduces an element of stimulation for the male and
precipitates her own rape. The theory suggest that the woman is to be blamed
for rape because she led the man on thereby unleashing his sexual passions
only to refuse his ultimate advances.
The Feminists criticize the victim precipitation theory because it

distorts legal understanding of rape and fatally affects how rape is defined
and treated by the criminal justice system. As per the statement of one of the
judges he could not conceptualize how a truly innocent woman could
allow herself to be raped unless there is evidence of extensive physical
trauma. Thus, even if the incident falls under the legal definition of rape, it
may not amount to rape as per judicial interpretations. In words of Judge Wild
Women who say

nodo not always mean
no
, it is a question of
how she says it, how she shows and makes it clear. If she doesn
t want it, she
15
only has to keep her legs shut and she would not get it without force and there
would be marks of force used.
The male dominated cultural arrogance emphasizes the belief that
many girls say no no when there is yes yes in their eyes and makes the
victim solely responsible for the violence perpetrated on her. As commented
by an Australian Judge
...[I]mprudent behaviour of many young women... lessen(s) the moral

culpability of the offender... These foolish women should behave with more
dignity and show some elementary prudence.
In fact, the image of the rape victim as seductive and enticing is at odds
with reality because rapes are reported to be committed on females as young
as few months in age and as old as ninety three years.
It is quite unfortunate that due to this theory of victim precipitated rape,

the judicial minds have been adversely influenced and consequently such
judicial decisions have been pronounced by the courts, which do not protect
the rights of the women victims of rape.
3. Genital Penetration v. Digital Rape
According to Oxford Companion to Law rape can be defined as the

crime of a man having sexual intercourse per vagina with a female not being
his wife (unless they are separated) knowing that it is done without her
consent or reckless as to whether she consents or not. The meaning of words
sexual intercourseand penetration is taken as the insertion of male organs

into the female organs of generation. Penetration of a bodily orifice or other
part of body or by an object does not fall within the meaning of sexual
intercourse and penetration.
Thus, rape is considered to be rape only if the woman

s sex genitals is
penetrated by male genitals. This definition of rape is based on the common
law in England and it has been incorporated in Indian law as well.
Under the Indian Law, explanation attached to section -375, IPC reads
that
penetration is sufficient to constitute rape
. Thus, the only question to
be determined is whether the private parts of the man did or did not enter into
the person of the woman. Penetration is constituted when it is proved that any
part of the virile member of the accused was within the labia of the pudendum
of the female, no matter how little. The slightest penetration is sufficient and
it is not necessary for the offence of rape that the hymen should have been
ruptured. A completed act of sexual intercourse and emission are also not
necessary.
This definition of rape focuses only on vaginal penile penetration.

However, frequently, the offender is unable or chooses not to penetrate his
victim in this manner, but may force her to perform acts of oral/anal sex,
penetrate her with other parts of the body or other objects, to demean the
victim. Insertion into the woman
s vagina of broomsticks, bottles and other
phallic objects (digital rape) is not considered to be as degrading as legally
defined rape.
17
Male genital penetration continues to be the governing ingredient in the
offence of rape. This concept has its roots in the notion of power, which men
must exercise over their women. According to the feminist analysis, the law
s
customary preoccupation with penetration is a reflection of man
s persistent
desire to maintain exclusive control over woman
s sex organs, so that his
need to be the sole physical instrument governing impregnation, progeny and
inheritance rights is met. The focus on vaginal penile penetration highlights
the
property crime nature of rape, whereby woman's sexuality is
controlled by the man as his sexual property. It reveals the self interest or a
male preoccupation with the risk of their respectable women getting pregnant
rather than a concern for the physical and psychological trauma, which the
rape victim suffers.
The existing definition of rape is too restrictive as it criminalizes only one

mode of sexual assault and completely ignores the aspect of digital rape
(sexual assault by using objects like sticks, bottles, rods, etc., or any other
bodily part e.g., fingers or toes). Flavia Agnes has remarked that
in all
criminal offences, injury and hurt caused by using weapons is more grievous
than the one caused by use of limbs, but in case of rape, the injury caused by
use of iron rods, bottles and sticks do not even amount to rape
.
The legal non-recognition of digital rape not only ignores the contemporary
feminist understanding of rape, but larger issues of humiliation, degradation
and violence, which occur when such objects are used. Taking account of
different modes and penetration by fingers, sticks, bottles, etc., Susan
Brownmiller has argued
Who is to say that sexual humiliation suffered through forced oral or

rectal penetration is a lesser violation of the personal private inner space, a
lesser injury to mind, spirit and sense of self...? All acts of sex forced on
unwilling victims deserve to be treated in concept as equally grave offences in
the eyes of the law, for a venue of penetration is less significant than the
intent to degrade.
In a case reported in Rape A Legal Study, an eight year old girl had
to be hospitalized after a man ruptured her uterus with an iron rod, but the
police refused to register it as a case of rape. In a case decided by Delhi High
Court, Sudesh Jhaku v. K.C.J , a six year old girl was made to perform oral
sex by the accused father and his friends, but the court held that no rape had
occurred at all. In such instances, glaring miscarriage of justice occurs due to
the limitations imposed by narrow definition of rape, which focuses on the
sexual aspect of rape more than the violence involved in it.
In cases of child rape/abuse, the restrictive definition of rape poses

bigger complicated legal issues as penis penetration is not possible in case of
very young children, the abuse may not amount to rape at all under the legal
definition of rape. Frequently, the accused gets away with the meagre
punishments in the guise of lesser offences.
The legal experts and various feminist groups have consistently

demanded that the legal terminology and ambit of the definition of rape
should be broadened to make it non-orifice and non-instrument specific. To
this end, the 172nd Law Commission Report recommends that
rapeas
occurring in section 375, Indian Penal Code, should be substituted by the
19
expression
sexual assault. The suggested new definition of sexual assault
incorporates not only penile penetration, but also penetration by any other
part of body (like finger or toe) or by any other object. The definition
suggested by the Law Commission is also non-specific regarding the orifice
of penetration as it covers oral and anal penetrations. Explanation to section
-375 IPC is also suggested to be substituted to say that penetration to any
extent whatsoever shall be deemed to be penetration for the purpose of
section. These suggestions, if carried out by the Indian legislature, will go a
long way in taking note of women
s experiences of sexual assaults.
The Pakistani law on rape, as embodied in Offence of Zina

(Enforcement of Hadood) Ordinance, 1979, contains the restrictive approach,
focusing on vagina penile penetrations only, but the relevant section 6 says
that zina bil jabr can be committed by a man as well as a woman.
In United States of America, the Federal Criminal Code, 1986,

contains an exhaustive definition of
sexual actand covers penile as well as
digital penetrations of mouth, anus and vagina of the victim. In United
Kingdom, Sexual Offences Act, 2003, penalises sexual assaults under two
categories rape, which is penile penetration of vagina, anus or mouth of
the victim and assault by penetration, which covers digital penetrations of
victim
s vagina and anus. The Crimes Act, 1900, of New South Wales also
contains provision defining
sexual intercourse
, which covers penile as well
as digital penetration of orifices of the victim.
The above mentioned American and English legislations which have

been enacted/amended recently to take care of feminist experiences of rape,
do provides a great inspiration to India and other South Asian countries to

modify/amend their existing statutes in order to incorporate the feminist
perspectives of sexual assaults.
4. The Spousal Exception Clause Marital Rape
One of the very implications of the narrow and restricted definition of

rape is that it cannot be committed against a particular set of woman- a
married woman cannot be raped by her own husband. Further, the implication
of this loophole is that violent and unwanted sex does not necessarily define
rape rather it is illegal sex i.e. sexual assault by a man, who has no legal
rights over the woman. In other words of Catherine Mackinnon
The law of rape divides women into spheres of consent according to

their indices of relationship to men, which category of presumed consent a
woman is in depends upon, who she is relative to a man, who wants her, not
what she says or does The paradigm categories are the virginal daughter
and other young girls with whom all sex is prescribed and the whore like
wives with whom no sex is proscribed.
Sexual assault within marriage is arguably the most mystified of abuses

perpetrated against women. Marital rape is not a contradiction in terms rather
a form of violence against wives, which is not rare, just rarely discussed Rape
is a persistent problem in a large number of marriages. Sexual assaults by
husbands are the most common kinds of sexual assaults reported, occurring
over twice as often as sexual assault by a stranger.In a study conducted by
21
her, Diana Russell found that one in every seven married women reported
being raped by the husband. David Finkelhor and Kresti Yllo have
commented that
the marriage license is a raping license.
Wife rape is the consequence of two very serious primarily male

problems violence and predatory sexuality. Wife rape is a manifestation of
a male sexuality, which is oriented to conquest and domination, to proving
masculinity defined in terms of power superiority, competitiveness, control
and aggression. A real man is supposed to get what he wants, when he wants,
particularly with his wife and even more particularly, in his sexual relations
with her. The composite picture of the husband rapist reveals jealous,
domineering individuals, who feel a sense of entitlement to have sex with
their
property wife on whom anger, depression, frustration can be taken
out and dominance and coercion can be exercised all in a permissible legal
sphere. Marital rape is most likely to occur in relationships characterized by
other forms of violence or abusive situations. This has led many researchers
to argue that marital rape is
just one extension of domestic violence
.
Under Indian law, exception to section -375 IPC, embodies that when
the woman is married and not less than fifteen years of age, sexual
intercourse by the husband is not rape. When the wife is between 12 15
years, the drastically reduced quantum of punishment is provided, which may
extend to two years or fine. It amounts to rape only when the wife is below
12 years of age. The peculiarity of Indian law is adoption of the principle of
primacy and supremacy of husband
s right over that of the wife, even when
she is well below the legal age of marriage. The legal corollary of not treating
forcible intercourse with a minor wife (between 12 18 years) as rape would

surely be not to consider such intercourse with an adult wife as marital rape at
all. The only instance, which law covers is that of legally separated couples
not living together under section -376(A), IPC and the vast bulk of marital
rape remains out the purview of law.
The Court held in Haree Mohan Mythee case that husband does not
have the absolute right to enjoy the person of his wife without regard to the
question of safety of her. As per this decision, the only circumstances where
the law recognises the encroachment upon husband's absolute right to sexual
intercourse is when it becomes extremely dangerous to woman due to some
physical illness, etc., and grave consequences like death may follow.
Thus, under Indian law, no effort has been made to give even a veneer
of protection to the right of a married woman to her physical or sexual
autonomy. In the existing scenario, there is hardly any feeble hope of future
changes as far as recognition of marital rape of adult women is concerned and
even in case of minor wives between 12 15 years of age, the offence is
treated for less seriously .In 156th Law Commission Report, the Commission
expressed its reluctance to raise the age for wife from 15 years to 18 years in
the Exception to section-375 IPC, without assigning any reasons in particular.
In 172nd Law Commission Report, the Commission found the deletion of the
Exception to section -375 IPC, unnecessary as it may amount to excessive
interference with the marital relationship. However, the Commission
recommended that the age limit for the wife be raised to 16 years from the
existing 15 years.
23
In England, the legal position is no better under Sexual Offences Act,
2003. Despite the elaborate provisions of the Act dealing with sexual
abuse/assault etc., the legislation recognises marital exemption, in its chapter
on
Familial Child Offences
. If a lawful marriage exists between the parties,
the coerced sexual activity will be no offence in the eyes of law. A contrary
position is contained in Crimes Act, 1900, of New South Wales which
provides that criminal penalties will follow in cases of sexual assault
immaterial of the fact that there exists a marriage between the offender and
the victim.
In United States of America, the Federal Criminal Code, 1986 makes

a distinction between aggravated sexual abuse and sexual abuse, depending
upon the use of force or the degree of fear generated by the offender. The
Code recognises the defense of marital status in case of sexual abuse of a
minor or ward, whereas in case of aggravated sexual abuse, the defense of
marriage is not recognised. As far as States are concerned, all States have
recognised marital rape as an offence by the year 1993, but the classification
of the offence and the punishment for it varies under different State laws.
The acceptance of any spousal exemption from rape indicates an

acceptance of the archaic understanding that wives are the sexual property of
their husbands and the marriage contract is an entitlement to coerced sex.
Moreover, by confining the offence to women, who are not married to the
perpetrator, rape laws become discriminatory and deny equal protection to a
class of persons married women, on account of their status.
The narrow and restrictive definition of rape, which allows for the
marital exemption and non-recognition of concepts like digital rape make the
definition a hollow statement, which provides escape-route for many
perpetrators of sexual violence.
ISSUES RELATING TO THE TRIAL OF RAPE
In rape cases, it is the victim, who is most often placed on trial rather
than the perpetrator. The systemic bias and obstacles of evidentiary nature
hamper the progress of rape trial and lead to consequent double victimization
of the woman. The victim is often accused of ulterior motives and false
implications and subjected to degrading questions with often-pornographic
overtones. It is these biases and obstacles, which are primarily responsible for
under reporting of the crime and very rare convictions.
The main issues relating to the trial of rape, which negate the human rights of
women are discussed below
1. CONSENT OF THE VICTIM
Consent is the fundamental issue in a rape trial as rape is defined as the

sexual intercourse against the will or lack of consent of the victim. Consent is
the legal dividing line between rape and sexual intercourse; it is the antithesis
of rape. Absence of consent is an important aspect of actus reus of rape and
becomes a determining factor in rape cases. It must be proved that the victim
did not consent to sexual intercourse or her consent was extorted through the
threat of physical violence. As Lorenne Clark and Debra Lewis put it
25

what makes sexual intercourse rape is not the offender
s use or threat of
physical force, but proof that a rapable female did not consent to the act in
question
.
According to Stroud
s Judicial Dictionary, consent is an act of reason,
accompanied with deliberation, the mind weighing, as in a balance, the good
and evil on each side. Adult female
s understanding of nature and
consequences of sexual act must be intelligent understanding to constitute
consent.
Consent may be express or implied, but it should have been obtained

prior to the act. In cases of tacit understanding, consent becomes a matter of
inference to be derived from the evidence of previous or contemporaneous
acts, conduct and other surrounding circumstances.
There does not necessarily have to be complete willingness to

constitute consent. A woman
s consent to intercourse may be hesitant,
reluctant or grudging, but if she consciously permits it, there is consent. The
Supreme Court of India has observed in Vijayan Pillai alias Babu v. State of
Kerela ,
In order to prove that there was consent on the part of the prosecutrix,
it must be established that she freely submitted herself while in free and
unconstrained position of her physical and mental power to act in a manner
she wanted. Consent is an act of reason accompanied by deliberation.
Consent means an active will in the mind of a person to permit the doing of
the act and knowledge of what is to be done, or of the nature of the act that is
being done is essential to a consent to an act. Consent supposes a physical

power to act, a moral power of acting and a serious and determined and free
use of these powers.
Consent given by a woman, who was asleep, intoxicated or is of

unsound mind is of no avail. When a man has connection with a woman,
while she was asleep in; where the woman was of imbecile mind, incapable
of giving consent from defect of understanding or where the woman was
intoxicated, it amounts to rape. It is explained in Jowitt's Dictionary of
English Law II End., vol.-1, that
consent supposes three things a physical
power, a mental power and a free and serious use of them. Hence, it is that if
consent be obtained by intimidation, force, mediated imposition,
circumvention, surprise or undue influence, it is to be treated as a delusion
and not as a deliberate and free act of the mind
. Consent implies the exercise
of a free and untrammelled right to forbid or withhold what is being
consented to; it always is a voluntary and conscious acceptance of what is
proposed to be done by another and concurred in by the former.
Fraud vitiates consent, but this proposition does not hold true in all
cases of fraud in rape cases. It cannot be applied as a mathematical formula
without any qualification to rape cases. In Queen v. Clarence , Stephen, J.
said
The only sort of fraud, which so far destroy the effect of woman
s
consent as to convert an intercourse consented to in fact into a rape, is fraud
as to the nature of the act itself, or as to the identity of the prisoner, who does
the act.
27
It is the misconception as to the nature of the act, which vitiates
consent of the victim, not the false assurances or the promises made to her.
The failure to keep the promise at a future uncertain date due to reasons not
very clear on the evidence does not always amount to misconception of fact
at the inception of the act itself. Indulgence in sexual intercourse by the victim
on the assurance or promise made by the accused to marry her, does not
amount to rape.
It is not the physical act of sexual violation involved in rape, which is

problematic. The mental element involved requires it to be shown that the
man knows the woman is not consenting to intercourse, or is reckless as to
whether she is consenting or not. The question whether an honest, but
mistaken, belief in consent is sufficient to negate the criminal liability of the
accused has been discussed by House of Lords in D.P.P. v. Morgan, It was
held that an honest belief in a woman's consent to intercourse meant that the
accused could not be convicted of rape, even if the jury found that there were
no reasonable grounds for such belief. Lord Coss has observed
Rape is not a word in the use of which lawyers have a monopoly and
the first question to be answered.... Is whether according to the ordinary use
of English language, a man can be said to have committed rape if her believed
that the woman was consenting to the intercourse and would not have
attempted to have it, but for this belief, whatever his grounds for so believing.
I do not think he can...
If the effect of the evidence as a whole is that the accused believed, or

may have believed that the woman was consenting, no question can arise as
to whether the belief was reasonable or not.
Whether there was consent or not, is to be ascertained only on a careful

study of all relevant circumstances. The Indian Courts have held that
submission of body under the fear of terror cannot be construed as a
consented sexual act. Consent requires voluntary participation not only after
the exercise of intelligence based on the knowledge of the significance and
moral quality of the act, but after having fully exercised, the choice between
resistance and assent.
Injuries The Proof of Resistance
The presence of injuries on the body of victim as the proof of her

physical resistance and consequent violence inflicted by the rapist is
considered to be the most reliable evidence of absence of her consent.
Absence of consent must be supported by tangible evidence, as the testimony
of the victim alone is not considered to be sufficient. To appear credible
before the Court, the woman is expected to resist the rapist with her utmost
capabilities.
The law traditionally operates on the assumption that all sexual

intercourse is consensual unless proven otherwise, only by the credible proof
of strenuous resistance on the part of the victim the marks of violence on
her body. Woman faced with a life threatening situation, act to minimize their
29
injury or prolong their lives and in doing so, they risk being accused of
co-operating or consenting to be raped.
The traditional requirement that women

resist to utmost reflects a
death before dishonour philosophy. Deciphering the meaning of
utmost
, the Wisconsin Supreme Court said the phrase requires
resistance the most
vehement exercise of every physical means or faculty within the woman's
power to resist the penetration of her person and this must be shown to persist
until the offence is consummated
. In order to prove the activity
non-consensual, the woman must be
bruised bloody and damned near
death
.
This cardinal principle is followed in all cases of rape and by and large,
the Courts have failed to take notice of the situation where the victim may not
have been able to muster sufficient strength to repel the act or the state of
shock or fear may have completely numbed her. According to a report
prepared by National Women's Study of United States, in 70% of the rape
cases, rape victims had no physical injuries, 4% had sustained serious
physical injuries and 24% suffered minor injuries.The reason for a vast
number of rape cases where victims received no injuries is that a woman
normally finds it difficult to retaliate and assault a man because of his
dominant and her subordinate position to him. In such situation, there may not
be any marks of violence on her body.
Glaister makes this point very clear

There are, unquestionably, girls, who become panic stricken when an

attack of this kind is made upon them and are rendered incapable of offering
serious resistance, with the consequence that their bodies do not bear
evidence of injuries such as might be expected from a severe struggle .
There is a distinct demarcation between submission and consent, which has

been endorsed by Punjab High Court, way back in 1958. In Rao Harnarain
Singh v. State of Punjab it was held
A mere act of helpless resignation in the face of inevitable compulsion

and non-resistance when volitional faculty is either crowded by fear or visited
by duress cannot be deemed to be
consent
. Consent on the part of the
woman, as a defence to an allegation of rape, requires voluntary participation,
after having fully exercised the choice between resistance and assent.
Submission of her body under the influence of terror is not consent. There is a
difference between consent and submission and consent involves submission,
but the converse does not always follow.
Despite the loud judicial pronouncements on the issue of consent, the

difference between consent and submission is little appreciated by the Courts
in factual situations before them. The result is that positive
resistance
becomes an essential ingredient in a trial and absence of any proof of injuries
gets equated to consent.
The legal provisions relating to consent requirements, under different legal

systems, are discussed as follows :
The Legal Provisions Relating to Consent
31
The statutory definition of rape in India emphasizes the element of
absence of consent. The clauses firstly and secondly to section-375 IPC
make the declaration that sexual intercourse by a man with a woman against
her will or without her consent is rape. As explained by High Court of
Rangoon, every act done against the will of a person is an act done without
his consent, but the vice versa is not true. An act done without the consent of
a person is not necessarily against his will.
The definition of consent has been expanded through the judicial

decisions, to mean positive cooperation in act or attitude pursuant to an
exercise of free will. A person must act freely and voluntarily and have
knowledge of the nature of the act involved. But the legal definition is not of
such a vast import. To rectify the situation, the 84th Law Commission Report
emphasized that consent must be real and active consent as distinguished
from the consent, which is implied by silence, due to timidity or meekness of
the woman. It was suggested by the Law Commission that expression
free
and voluntary consentbe substituted in place of consent.
Clauses thirdly, fourthly and fifthly to section-375 IPC, describe the

circumstances that vitiate consent. The Clause thirdly to section-375 IPC,
recognises that the consent gets vitiated only when a woman is put in a fear of
death or hurt. It was pointed out by the 42nd Law Commission Report that
section-90 IPC, describing the circumstances, which vitiate consent, includes
fear of
injury
, which is an expression of wider connotation. The expression
injuryincludes any harm whatsoever illegally caused to the person

s body,
mind, reputation or properly.
The 84th Law Commission Report took note of the fact that there can
be circumstances, where actual physical force is neither used, nor threatened,
but the consequences intended do not pose any lesser gravity. Thus, if
consent is obtained after giving the woman a threat of spreading false or
scandalous rumours about the victim's character or destruction of her property
or injury to her parents or children etc. or holding out threats to her person,
reputation or property or of someone else's in whom she is interested, that
consent should not be taken as consent under section-375 IPC. The Law
Commission suggested the addition of expression
injury to any person to
clause thirdly to section-375 IPC. The suggestion was reiterated by 156th Law
Commission Report that the expression
or of any other injuryshould be
inserted in the clause thirdly, after the words
fear of death or of hurt
.
The Clause fourthly to section-375 IPC acknowledges only one kind of

misconception of fact, i.e. the induced belief that the man is her husband
vitiates the consent of the woman. Whereas, under section-90 IPC, any
misconception of fact vitiates consent provided that the man knows or has
reason to believe that consent was given in consequence of such
misconception. The 42nd Law Commission Report considered the possible
view that the third and fourth Clauses of section-375 IPC, relating to hurt and
misconception are special provisions and hence exclude the application of
general provision section-90 IPC, but refrained from suggesting any
amendment. This kind of legal interpretation is only reflective of the
patriarchal biases, which operate against the rape victim as nothing else can
justify the exclusion of rape cases from the ambit of section-90 IPC.
33
The Clause fifthly to section-375 IPC acknowledges that consent gets
vitiated by reason of unsoundness of mind or by intoxication or administration
of any stupefying substance by the accused himself or through another, at the
time of giving consent. Consent given under such circumstances is not
genuine or real. The 84th Law Commission Report stressed the need for a
clause covering such circumstances and clause fifthly was incorporated in the
1983 Amendment Act. There is slight ambiguity regarding a situation, where
the woman herself administers the stupefying substance and under its effect,
gives her consent to intercourse.
The Clause sixthly to section-375 IPC incorporates statutory rape and

prescribes the age of consent as 16 years, below which the girl is not
considered to be capable of giving her consent. But a deviation from the
principle of statutory rape is the Exception to section-375 IPC, which
emphasizes that sexual intercourse by a man with his own wife, when she is
above 15 years of age is not rape.
The age of consent as maintained by section-375 IPC, comes under

great criticism from various legal experts and feminists as it is not in
consonance with other prevailing laws. The Child Marriage Restraint Act,
1929, makes 18 years as the age of marriage. It remains difficult to find a
logical reason for discrepancies amongst various laws regarding the age of
consent. When a girl is not considered fit for marriage when she is below 18
years of age, how can she become fit for sexual intercourse with or without
consent and it does not amount to rape. On one hand, Child Marriage
Restraint Act, 1929, penalises the marriage of a girl below 18 years and on
the other hand, the penal law of India does not recognise forcible sexual
intercourse with a wife between 15 18 years. The punishment provided
under section-376 (1), IPC, for the marital rape of child wife between 12
15 years is too lenient, viz. two years or fine. The low age of consent for rape
provisions is a grave reflection of patriarchal biases of the legislators, which
must have influenced their mind at the time of drafting the provisions as the
rights of the husband over the sexuality of his wife have been accorded
supremacy.
There have been suggestions from various NGOs and women groups to
increase the age of consent to 18 years, which have been acknowledged by
the 84th and 156th Law Commission Reports, but somehow 172nd Law
Commission Report takes a retrogressive step in recommending the age of
consent as 16 years.
The United Kingdom, the Heliborn Committee (1976) and Rape and
Criminal Law Revision Committee (1984) had exhibited restrictive approach
on consent and recommended that legislation be introduced to ensure that
threats other than of immediate force be precluded from the scope of rape.
The recently enacted legislation, the Sexual Offences Act, 2003,

incorporated many progressive changes in the definition of rape and assault
by penetration, but when it comes to the issue of consent, the situation by and
large revolves around the ratio of D.P.P. v. Morgan.
35
The provisions relating to rape and assault by penetration make it clear
that the question whether a belief is reasonable is to be determined having
regard to all circumstances including any steps the accused might have taken
to ascertain the consent of the victim.
A more progressive approach is contained in Crimes Act, 1900, of New

South Wales, contains an express provision on consent. The provision
section-61 R of the 1900 Act makes it clear that recklessness of the accused
in cases of sexual assault and aggravated sexual assaults will not diminish the
absence of consent on the part of the victim and he will be deemed to know
that the victim never consented. The provision covers the cases of mistaken
identity, mistaken belief of marriage, mistaken belief of medical or hygienic
purposes, but does not limit the grounds on which consent may be vitiated.
The Section clarifies that submission under threats or terror does not amount
to consent and absence of actual physical resistance by the victim will not be
regarded as consent on the part of the victim.
In United States of America, the Federal Criminal Code, 1986, makes

the gradation of sexual offences as sexual abuse and aggravated sexual abuse
depending upon the use of force by which the submission of the victim is
obtained by the offender. As per the provision, consent of the victim is
vitiated when he is placed in fear of death, serious bodily injury or kidnapping
of any person; where he was rendered unconscious; where he was under the
influence of a drug or intoxicating substance forcibly administered to him.
The diametrically opposite provisions are contained in Pakistan's,

Offence of Zina (Enforcement of Hadood) Ordinance, 1979, which are
exceptionally stringent regarding the issue of consent of the victim. The

relevant provision relating to zina-bil jabr (rape) chalks out the vitiation of
consent when her consent has been obtained by putting the victim in fear of
death or hurt or when it is a case of mistaken marital status of the offender.
The provisions of the Act require exceptionally stringent proof of non-consent
on the part of the victim. She is required to procure at least four Muslim adult
male witnesses, who are truthful and abstain from major sins, who depose
their evidence as eye-witnesses of the act of penetration to the offence . In
the absence of such evidence, consent is presumed on the part of the victim.
These above stated legislative provisions from different countries reveal a

picture, on the issue of consent, which is by and large gloomy and does little
to protect the rights of the victim. The requirement of corroboration of
evidence, in order to establish non-consent on the part of the victim, add
another gloomy dimension to rape law, which intensifies the plight of the
victim.
2. THE CORROBORATION REQUIREMENT
The myth that women falsely implicate men on charges of rape has led to
the applicability of special rules of evidence in a rape trial. For any other
crime than rape, the victim's testimony alone is sufficient for a conviction, but
in a rape trial the victim's testimony must be corroborated by other evidence.
In rape cases, greater emphasis is placed on the evidence, which would
corroborate the possibility of alleged rape a requirement, which is lacking
in case of other offences. The corroboration rule requires that the testimony of
the victim be supported by independent
inculpatoryevidence before the
37
accused can be convicted on its basis. This independent evidence generally
comprises of forensic and medical evidence of injuries on the body of the
victim and accused, presence of blood or semen, torn clothing, immediate
conduct of the victim after the incident etc.
While the corroboration rule has been criticised, it is still widely used in
the criminal justice processes. The rule of corroboration is not a statutory
need, it has developed as a requirement under the rule of common law
influenced by the doctrines of Sir Mathew Hale. The rationale for
corroboration requirement as expressed by Hale is that
rape is an accusation,
easily to be made and hard to be defended
. For over two centuries, Hale
s
observations have been cited with widespread approval, but without empirical
support. The observations made by Hale have influenced the common law
rules so much that the victim
s evidence alone is not considered sufficient to
procure a conviction. There must be some additional confirmatory evidence,
which implicates the accused person and tends to confirm his guilt. This is
known as corroboration requirement, which is based on the premise that the
evidence of the woman is not credible as they are prone to make false
accusations.
The whole issue of corroboration is focused on two main concerns the

innocence of the accused and the image of woman as temptress and a
shameless liar. If the women are not perceived as habitual liars, then there is
no need for corroboration of her evidence. Corroboration is confirmation
(a) that the event occurred and is, thus, not a complete fabrication, (b) that the
accused has been identified as a rapist, (c) that there was actual penetration of
the woman, and (d) that her consent was absent due to the presence of force.
Further, in order to prove penetration, the prosecution must provide

evidence of bodily injury such as vaginal tears, sperms or pregnancy. To
prove lack of consent, the prosecution must produce evidence like body
bruises, torn clothing, victim's fight and hysteria etc. Sometimes, Courts have
chosen very absurd criteria e.g., presence of injuries on the penis of the
accused, in the absence of which, consent on the part of the victim is
presumed. Feminists have argued that the major reason behind these rules
seem to be an excessive fear of mendacious females and when these stringent
corroboration requirements are strictly enforced, it becomes near to
impossible to convict a rapist.
Until recently, in a number of countries, the judges were obliged to warn

the jury of the danger of convicting solely on the basis of the evidence of
complainant. There is no statutory requirement for corroboration rule and it is
only the culmination of patriarchal biases against the victim that the veracity
of her testimony should be doubted. Considering this, many jurisdictions have
legally discarded off the corroboration requirement. In United Kingdom, the
Criminal Justice Act, 1994, has abolished the compulsory nature of
corroboration warning.
In India, old English precedents, followed in cases decided by British

Indian Courts, captured the legal situation for quite a while. It resulted in a
judicial tendency to over rely on the necessity of corroboration.This kind of
corroboration was the same as required in a case of accomplice. The impact
39
of such rulings was drastic because the only independent evidence besides the
victim
s testimony would be that of witnesses, who came in her contact after
the incident and that did not receive proper evidentiary value. In many other
cases, it was reiterated that uncorroborated testimony of the victim alone was
not sufficient for conviction.
The first progressive development occurred in 1952, with the

pronouncement of Supreme Court in Rameshwar v. State of Rajasthan
Woman, who has been raped, is not an accomplice... corroboration can be

dispensed... when it is safe to do so. The rule, which according to the cases
has hardened into one of law is not that corroboration is essential before there
can be a conviction, but the necessity of corroboration, as a matter of
prudence, except where the circumstances make it safe to dispense with it.
The judicial stand in Rameshwar case was followed in many cases,

holding that corroboration is not sine qua non of conviction. In Rafiq v. State
of U.P., Krishna Iyer, J. referred to the requirement of corroboration as the
sacred cows of criminal lawin Indo Angalian jurisprudence, which are

superstitious survivals and need to be re-examine
. He further observed that
we cannot cling to a fossil formula and insist on corroborative testimony

.
In another landmark judgment, Bharwada Bhoginbhai Hirjibhai v. State

of Gujarat, the Supreme Court observed
In the Indian setting, refusal to act on the testimony of a victim of sexual

assault in the absence of corroboration as a rule, is adding insult to the injury.
Why should the evidence of the girl... be viewed with the aid of spectacles
fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to

justify the charge of male chauvinism in a male dominated society.
In State of Punjab v. Gurmit Singh, the Supreme Court opined that the
testimony of the girl in rape cases is vital, almost at par with that of an injured
witness and to an extent even more reliable and the Courts should find no
difficulty to convict an accused on the basis of testimony of the victim alone
when it inspires confidence. The Court held
Corroborative evidence is not an imperative component of judicial

credence in every case of rape.... a woman or a girl subjected to sexual
assault is not an accomplice to the crime, but is a victim of another person
s
lust and it is improper and undesirable to test her evidence with a certain
amount of suspicion, treating her as if she were an accomplice. Inferences
have to be drawn from a given set of facts and circumstances with realistic
diversity and not dead uniformity test that type of rigidity in the shape of rule
of law is introduced through a new form of testimonial tyranny making justice
a casualty.
The Supreme Court emphasised in Krishanlal v. State of Haryana , that

Court should keep in mind the human psychology and behavioral probability
while assessing the victim's testimony. To forsake these vital considerations
and go by obsolescent demands for subsequent corroboration is to sacrifice
common sense in favour of an artificial concoction called
judicial
probabilities
.
41
The judgments pronounced by the Supreme Court attempt to remove the
ambiguities regarding the judicial position of victim
s testimony. Despite all
these progressive judgments, Courts tend to consider the corroborative
evidence to confirm the charge of rape and look into the presence of injuries
and delay in filing FIR, etc.
3. PAST SEXUAL HISTORY OF THE VICTIM
Another extraordinary rule of evidence, which is invoked in the rape trial,

is relating to the previous sexual history of the victim. The rule allows the
defence to raise the issue of victim
s character, reputation and previous
sexual conduct history, which establishes not only the consent of the victim,
but directly attacks at her credibility as a witness.
In patriarchal value systems, virtue is equated with chastity and virginity

of the woman and the need to protect chastity becomes the basis for
intervention of criminal law. The rationale behind the examination of the
woman
s character and her past sexual conduct is to find out if she is the sort
of woman, who can be raped.
The general perception of society of a good woman is one

who is a
virgin, celibate or an indisputably faithful wife.A woman who has had
premarital or extra marital sex relations or the one who has been a prostitute,
does not fit into the image of the rape victim as a chaste, morally upstanding
woman, who reserves her body for the
rightful owneri.e., her husband.
Thus, an unchaste woman, who maintains that she did not consent to the
intercourse, must be lying and does not deserve the protection of law. The
general presumption of Courts is that an unchaste woman is more likely to lie

than a chaste woman.
In sum, unless a woman possesses the virtue of chastity, she can possess
no other virtue hence her credibility as a witness is challenged by her past
sexual conduct.
In a Canadian case R. v. Oquataq Marshall, J. comments upon the

appropriate test for judicial truth applied to the character of the victim
Although relating chastity to a likelihood of consent is unfair, it has

comprised part of the carefully balanced evidentiary process... The question
of the proper evaluation of such evidence is difficult one... The lynchpin of
the enigma in this is the willingness to have intercourse outside of marriage
or established relationships any indication of a willingness to consent to
intercourse with someone else... Now, then in logic is [such] sexual
indulgence logically probative of consent on a particular occasion? Does it
make consent more harmonious with all the circumstances... Does it mean the
girl was more likely to have consented?... The problem is that this assumption
or probability... denies both autonomy and dignity to women... [but] our test
for judicial truth is based on probabilities... it may show rank prejudice but
we use it.
It is quite clear from the above passage that the test for judicial truth has
been constructed from a normative base; it rests upon and perpetuates
rank
prejudice
, tolerates unfairness to women and denies women autonomy and
dignity and further constrains conceptualization of alternate problems.
43
Similar rank prejudices are existent in Indian law since the common
practice of British Indian courts to warn the jury not to accept the testimony
of the victim, if she happened to be a woman of bad or loose character.
Where a woman's chastity was found to be tainted, the degree of taint
affected her evidence in different ways and the charge of rape became
improbable to a large extent. The unchastity of victim led to the conclusion
that
a woman, who has done things voluntarily in the past would be much
more likely to consent than one whose past reputation was without blemish
.
In the recent times also, the judicial interpretations and implications

regarding the character of the victim are no different and reflect the inherent
patriarchal biases. In many cases, consent is presumed on the part of the
victim, in the light of her past sexual relations.
The judgment of Apex Court in Prem Chand v. State of Haryana is quite

peculiar as the punishment of the accused was reduced from 10 years RI to 5
years RI on account of the victim's conduct and circumstances of the case. It
was observed by the Court that the victim was
a woman of questionable
character and easy virtue with lewd and lascivious behaviour
. This decision
attracted the attention of the various women organisations and they expressed
their anguish in An Open Letter From the Women
s Organisations of Delhi.
It was emphasised in the letter that the protection of criminal law is extended
to all women and not exclusively to
virtuous women
. In review petition, the
Court clarified that the expression
conductwas used in the lexigraphical
meaning for the limited purpose. The Court observed
[T]he character or reputation of the victim has no bearing or relevance

either in the matter of adjudging the guilt of the accused or imposing
punishment... Such factors are wholly alien to very scope and object to
section-376 and can never serve either as mitigating or extenuating
circumstances for imposing the sub minimum sentence...
The clarification given by the Court raises more questions than it answers.
The only inference, which can be drawn from the judgment, is that the
victim's past sexual character influenced the court while imposing the meagre
punishment.
A landmark decision of Apex Court State of Maharashtra v. Madhukar

Narayan Mandikar , serves to correct certain indefensible extensions and
assumptions drawn by patriarchal laws, which violate the human rights of a
category of women referred to as
women of easy virtue
. In this case, the
Supreme Court remarked that the victim, who was a mistress to somebody,
acted honestly when she submitted the dark side of her life. The Court
observed --
Even a woman of easy virtue is entitled to privacy and no one can invade
her privacy as and when he likes... it is not open to any and every person to
violate her person as and when he wishes... She is equally entitled to
protection of law.
The Legal Provisions Related to Past Sexual History
The 84th Law Commission Report has vehemently criticised the

discriminatory provisions of Indian Evidence Act, 1872. It has stressed the
45
need for modifications so that in cross-examination, past sexual history
evidence should be prohibited except as sexual relations with the accused.
The Commission has remarked that it is wrong to assume that a female
witness is less likely to tell the truth when she has a generally immoral
character. The Commission opined that self-consciousness and shame
resulting from queries and adverse comments, might even result in a
permanent scar on the victim
s peace of mind and psychic well being and
there must be struck a balance between the demands of a fair trial and the
dignity of the woman. The Commission recommended addition of section
-146 (4), ruling out the questions on character while impeaching the credit of
the witnesses.
The 172nd Law Commission Report has reiterated the required

modifications excepting that the report recommends complete deletion of
section-155 (4)
Indian Evidence (Amendment) Act omitted the clause (4) of section

155 and added a proviso to section 146 of IEA that in a prosecution for rape
or attempt to commit rape, it shall not be permissible to put questions in the
cross examination of the prosecutrix as to her general immoral character.
In United Kingdom, the exclusionary rule prevents the prosecution

generally from producing evidence in a trial of a defendant
s previous
misconduct and he can be asked questions about his past in cross examination
where he has claimed to be of good character or has himself attacked the
character of a prosecution witness.
The Criminal Justice Act, 2003 , abolishes the common law rules and
provides that evidence of bad character is admissible in case of witnesses and
defendant. Such evidence can be admitted if it is explanatory and if all parties
have agreed to such evidence being admissible in case of the defendant
accused. There are no express provisions in the Act barring the evidence of
sexual character of the prosecutrix, in a rape case.
4. CONDUCTING THE TRIAL AND PUBLICITY DURING THE

TRIAL
The court practices and procedures can exacerbate the victim

s ordeal
during trial. All rape victims suffer from the psychological trauma apart from
the physical sufferings and they must be treated by the criminal justice system
with courtesy, compassion and respect for their personal dignity and privacy.
Recognising the special needs of the rape trials, many countries have
specified certain departures from the ordinary rules of criminal procedure. In
many legal systems, special rules pertaining to the manner in which a rape
trial must be conducted, are recognised e.g., in camera trial, closed court,
accepting the evidence in written form etc.
In Camera Trial
47
The general rule for conducting the trial require the courts to be open.
In case of sexual offences, there is an overriding consideration which justifies
an exception being made to the general rule of public trial. In rape cases,
details of a very intimate character are required to be narrated in the court. It
comes very embarrassing for the victim to narrate the event in full glare of
publicity. By reason of such embarrassment, she may not be at ease in a
totally alien atmosphere of court and may feel hesitant, which ultimately
affects the quality of the evidence adduced by her. The undue publicity given
to the court proceedings is evidently harmful to the victims as it bears the
social consequences which mar their future in many ways apart from making
their lives miserable. In order to protect the woman victim from undue and
undesirable publicity that the courts conduct trial in camera.
After a strong recommendation of 84th Law Commission Report,

section-327 CrPC was amended by the 1983 Amendment Act. The amended
provision provides for in camera trial in rape cases and makes it unlawful for
the media to publish anything related to the court proceedings. The court may
exercise the discretion to allow the presence of any particular person, on an
application made by either of the parties. The Supreme Court endorsed the
provision for in camera trial in State of Punjab v. Gurmit Singh

It would enable the victim... to be a little comfortable and answer the
questions with greater ease in not too familiar a surroundings. Trial in camera
would not only be in keeping with the self respect of the victim of crime and
in tune with the legislative intent but is also likely to improve the quality of
evidence of a prosecutrix because she would not be so hesitant or bashful to
depose frankly as she may be in an open court, under the gaze of public. The
improved quality of her evidence would assist the Courts in arriving at the
truth and sifting truth from falsehood
.
But the provisions for in camera trial generate a debate over its utility.
There was a controversy among the members of the Law Commission and the
Joint Parliamentary Committee regarding the in camera trials. Doubts were
expressed whether it would reduce the chances of fair trial or it would be a
protective measure for women. The women groups who had earlier demanded
in camera trials realise the practical difficulties involved and changed their
stand. They felt that a rape victim faces maximum social stigma within the
community at the time of the occurrence of rape and soon after while
registering the case. But once the case is registered, conducting the trial
behind closed doors would not provide further protection to the victim. It was
felt by the women groups that a trial behind closed doors would give
protection to the rapists as a good defence lawyer can make mincemeat of a
prosecutions witness. It is pertinent to point out that not even the family
members or social worker can accompany the victim in-camera trial without
the previous sanction of the court. The situation gets more precarious in case
of minor victims or victims hailing from rural background having little
exposure of life. Thus, the provision in its present state is not free from
lacunae.
Publicity During the Trial
All victims of rape are subjected to social ostracism because rape is

perceived more in terms of dishonour not only to the victim, but her family
49
rather than a violation of human rights of the woman. The woman who
publically declares that she has been raped is subjected to stigma which
grossly aggravates her trauma. Owing to it, many rape victims avoid the
struggles launched on their behalf by the social and women
organizations/activists, which bring them enormous, unwelcome and often
unsympathetic publicity which makes their social rehabilitation extremely
difficult. In the absence of any sensitivity on the part of public, to the ordeal
and trauma of rape victim, the experience of figuring in a report may itself
become another assault. It is for these reasons that the National Council for
Civil Liberties has stated
The Law should recognise the fact that there is still a stigma attached
to rape from which the victims may suffer for years afterwards.
Recognising the unpleasantness and awkwardness which is associated

with the identification as the one involved in a rape case, the 84th Law
Commission Report made the recommendation to insert section-228-A. The
Law Commission emphatically stressed the need to respect the anonymity of
the rape victim during the trial but at the same time observed that the
reporting of judicial proceedings should not be restricted except for the
weightiest reasons, which exist in case of a rape trial.
The provision for protection of anonymity of the victim during the rape
trial, is incorporated in Indian Penal Code, 1860 as section-228-A. The
provision prohibits and penalises the printing or publishing the name of the
victim or accused in a rape case so that their identities are not disclosed.
Further, it provides that such publication can become permissible with the
written authorisation of the victim or of next kin of the victim where she is
dead, minor or of unsound mind; or the police officer investigating the case.
The sweep of this section is very wide and it was widely debated in
both the Houses of Parliament. It was described as absurd section by the
parliamentarians which eliminates the very purpose of the amendment of rape
laws. In the present form, section-228-A, IPC bans the publicity of rape cases
even by the women organizations. This situation makes it very difficult to
publicize the poor investigation etc. in a rape case thus disabling the women
activists groups to exert any pressure to form any public opinion. While
enacting the 1983 Amendment Act, the legislators seem to have forgotten that
it was only due to the publicity following the agitations etc. in Mathura Case
that the idea of amendment to rape laws was conceived. Situation become
worse in those cases, where by misusing the provision, the accused may
compel the victim by exerting the power imbalances between them, to
withhold her consent to publication, which she otherwise would have given.
The ban on publication is not applicable to High Court and Supreme Court
judgments. Thus, the so called protective provisions for women become
almost redundant due to the inherent lacunae in them. The glare of the
publicity can be avoided simply by not mentioning the name of the rape
victim.
5. Medical Examination of the Victim
51
In rape case the most important factor is the examination of the
prosecutrix as that examination which produces medical evidence is the most
important supportive evidence, document that decides the fate of the accused.
The identity of the prosecutrix must be proved to the satisfaction of the
Doctor examining the victim and this is done by the escorting police officer.
In rape case and consent are most important factors in determining the
offence, hence victim
s exact age may be vital as the consent is 16 years and
above in view of clause sixthly of Section -375 IPC where it lays down that
with or without her consent when she is under 16 years of age which
indicates that above 16 years can consent for sexual intercourse. Mature girl
must be questioned carefully about her health, menstrual, sexual history etc.
The whole body surface should be examined for injuries, mud, blood or
seminal stains on clothes, with special attention to the backs of the upper
arms the shoulder blades, buttocks, grass, leaves muds and foreign body
where the offence seems to have been taken outside.
Legal Provisions relating to Medical Examination:
Code of Criminal Procedure (Amendment) Act, 2005 brought forth

many changes in rape laws, especially related to detailed procedure of
examination of victim and accused both by inserting new sections: 164-A,
174 (1A), (b), and 53-A (a) CrPC, and made it clear that in addition to
physical examination, it also shall include the examination of blood, blood
stains, semen, swabs in case of sexual offences, sputum and sweat, hair
samples and finger nail clippings by the use of modern and scientific
techniques including DNA profiling and such other tests which the Registered
Medical Practitioner thinks necessary in a particular case. Section 174 (1A),

(b), Cr PC inserted to make mandatory inquiry by the Judicial Magistrate in
cases of custodial rape and murder cases.
Thus, there are many issues relating to rape which make the rape
victim
s access to justice extremely difficult. Patriarchal biases are inherent,
right from the very conceptualization of rape to the trial in rape cases. Rape is
viewed as an act of sexual intercourse and is considered a sexual offence. The
rape victims who do not conform to the sex roles assigned to women in a
patriarchal society, encounter a harsher treatment by the legal system. The
over emphasis on chastity and purity of women is reflected in the legal
provisions and their interpretations which manifests itself in issues like
consent, and past sexual history of the victim and the requirement for
corroboration of her testimony. Thus, the concept of rape, rape laws and their
implementation remain surrounded by many problematic issues which negate
the probability of imparting justice to the victim of rape.
53
CHAPTER -V
Rape: Judicial Approach In India
As an institution, the Indian judiciary has always commanded

considerable respect from the people of this country. The roots of this high
regard lie in the impartiality, independence and integrity of the members of
the judiciary. Respect for the judiciary was part of the common man's
aspirations for maintaining Rule of Law and building a just society. The
deeper aim of the law was creation of a good society.
Chankya said,
Law and morality sustain the world.But morality
stems from ethnical values. The societal perception of judges as being
detached and impartial referees was the greatest strength of the judiciary.
The real source of the strength of the judiciary lies in public confidence in
the institution. Today it was because of the public perception that the
higher judiciary in the country occupies a position of pre-eminence among
the three organs of the state.
The Latin maxim, boni judicwas est ampliwere jurwasdictionem -

it was the duty of a good judge to extend the jurisdiction - based as it was
on the principle that law must keep pace with society to retain its
relevance because if the society moves but the law remains static, it should
be bad for both. The Indian judiciary has, during the last few decades,
acted on the maxim extensively in cases where protection of fundamental
rights or basic human rights were concerned.This line of precedent was
both dramatic and educative. It was the tardiness of legislatures and the
indifference of the executive to address itself to the complaints of the
citizens about violations of their human rights and unfair treatment, which
provides the necessity for judicial intervention.
The judiciary could neither prevaricate nor procrastinate. It must

responded to the knock of the oppressed and the downtrodden for justice
by adopting certain operational principles within the parameters of the
Constitution and pass appropriate directions in order to renderful and
effective relief. Judicial activism generally encompasses an area of
legislative vacuum in the field of human rights.
The Supreme Court and the High Courts have played a significant
role in protecting the fundamental rights of the people. The judges were
after all part of the society and cannot be totally immune from the
dominant trends of social thoughts prevailing therein. Cardozo rightly
observed,
The tides and currents which engulf the rest of men do not turn
aside pass the judges by. An analysis of the judicial decisions therefore
was undertaken to show to what extent the judges shared the gender
predilections prevailing in the society and how in spite of such
predilections they rendered decisions which advanced the progress of the
law towards gender justice. Thus the, Indian judiciary has paid a yeoman
s
service in protecting and preserving the rights of the females as well as
sensitising the society concerning the rights of the half of the human
population.
Time and again the Supreme Court of India has extended the ambit
of Article 21 of the Constitution of India and held that mere existence was
not the right to live- it was the right to live with dignity. Thus, whenever
the crimes were committed against women the same should be viewed in
the context of violation of her right under Article 21 of the Constitution of

India and not merely as a crime against the society.
In order to show the change and improvement in the Judicial

approach with respect to rape law, an attempt is made herein to discuss
some of those cases, which showed the apathetic and indifferent judicial
attitude towards rape victims.
In Mahla Ram v. The crown, the victim was raped in a moving train
by the accused that dragged her down the bench and tucking up her
loincloth forcibly raped her. When the train reached the next station, one
guard came into that compartment and found the woman lying on the
bench and the accused picking up his loincloth that was untied. There was
an independent witness also who heard the victim screaming.
The court held that the evidence on the record was the most
inconclusive to hold the accused guilty of rape and the victim to be a
non-consenting party and it was improbable to hold that the woman was
not a consenting party. There were absolutely no evidence on the record of
any struggle having taken place nor were marks of injury sound on the
person either of the victim or of the accused. It was further held that there
was no independent evidence in support of the statement of the victim and
it would be most dangerous to base a conviction on her uncorroborated
testimony alone.
The court emphasised on the necessity of corroborated testimony of

the victim and also the evidence of resistance to hold the accused guilty of
rape and to determine her consent or want of consent. In the present case,
3
as there was lack of all these evidences the court found the victim to be a
consenting party and the accused not guilty of offence of rape.
The Court displayed a total disregard to the psychology of a woman

and expected victims to be fighting for their pride. The Court failed to
recognise the generally prevailing uneducated, shy and fearful attitude of
woman. The expectation of stiff resistance in each case of rape is highly
inhuman and injudicious. It is a well-known fact that raped is such an
offence that is not committed in a public place in front of a number of
people so that eyewitnesses shall be there to corroborate the victim's
version. It is highly disturbing fact that generally in cases of passive
submission Courts read consent in total disregard to the prevailing social
facts and woman psychology.
In Ibrahim v. Emperor ,the cattle of the accused trespassed on a

grassy plot in which the victim was grazing her cattle. She drove away the
cattle and then remonstrated with the accused. The accused thereupon
seized her and proceeded to rape her. Her cries attracted the attention of
two independent prosecution witnesses who rescued her.
The court held that the evidence of the victim was corroborated by
the evidence of a disinterested witness that left no doubt that the girl was
raped. At the same time the medical evidence showed that the girl was
used to sexual intercourse and as she was unmarried it followed that she
was unchaste. Under the circumstances of the case the court considered
that the sentence of seven years' rigorous imprisonment was too severe and
it reduced it to four years' rigorous imprisonment.
In this case, the reasoning of the court in reducing the sentence of

the accused clearly shows the apathetic attitude of the Judiciary towards
the victim. It gives an impression that a girl of easy virtue can be raped by
anybody and she has no right to protect her person in such cases of sexual
assault.
In Jalal v. Emperor, two men raped the victim when she was alone
in her home. The victim called for help and several people appeared
including her mother-in-law. These persons saw the accused persons
escaping.
The court held that it was quite clear from the evidence that the
accused entered the house of the victim and committed criminal assault
and not rape upon her. The court observed that the report of the chemical
analyzer regarding the presence of semen on the victim's clothing was not
sufficient to prove that the victim was actually raped.
In Emperor v. Mahadeo Tatya , the victim, a married girl of about

15 years and a ghee seller was asked by the police constable on duty to
put the ghee in his room. She was raped inside the room, closed and bolted
by the constable. After the alleged rape, she was taken to a Railway
Station and on the way deprived of her ornaments by the man who was
told to accompany her at the behest of the accused.
The order of conviction of accused, who was a police constable,

passed by the trial Court in consultation with jury was set aside by the
Bombay High Court for want of corroboration. The Court observed that a
charge of rape was very easy charge to make and a very difficult one to
refute and corroboration must necessarily depend on the facts of each
5
case. It observed that in a contested case of rape, medical evidence
showing injury to the private parts of the victim, external injury to her
body as a natural consequence of resistance by her; use of force by the
accused and the presence of seminal stains on her clothes and on the
clothes of the accused or at the place of occurrence were needed for the
corroboration of charge/allegation. It further observed that the subsequent
conduct, by itself, although important, was not enough because a witness
could not corroborate himself/ herself.
In setting aside the lower court's verdict of conviction, the court

failed to take into consideration the social realities and also the pathetic
condition of the victim vis-a-vis a well off and comfortably placed
accused. In Indian society no woman or girls would prefer to invite the
social stigma of being raped and thereby losing her most vital wealth i.e.
Virginity and Chastity for the sake of procuring conviction for others.
Secondly, the suggested corroborative medical evidences were not
necessary to be available in each case of rape like where the victim was
habitual to sexual intercourse, no injury would be available on her private
parts, also where she was overpowered in the beginning of the act or series
of acts by putting her in threat of physical injury or any other method, she
would be left with no option other than to passively submit and no sign of
injury would be visible on her externally. Same would be the case
regarding the presence of seminal stains or other biological evidences. In
this case the court created an unscientific and rigid requirement of
independent corroboration ignoring the social facts that outweigh the need
of mechanical corroboration. Also, in cases of false accusation, it would
always be open to the accused to assign some credible reasons for such
accusation and in absence of these reasons adhering to the requirement of
mechanical corroboration is not only anathema to the concept of justice

but also supportive to class exploitation of women.
In Nura and Ors v. Rex, the victim aged around 12 to 13 years,

having intimacy with a friend in the neighbourhood once went to her house
on an invitation, and was introduced to her husband and another friend of
his. The friend asked the victim to go with these two men who took her out
of the village and several men allegedly raped her.
The doctor found that her hymen was absent and that there was no
laceration of the vaginal orifice, nor was there any mark of any injury. On
this the court observed that the girl appeared to have had some previous
experiences of sexual life, and the fact that there was no mark of any
injury on any portion of her body clearly suggested that there had been no
tussle between her and the accused persons when one or the other would
have raped her.
The High Court held that in a charge of rape the uncorroborated

testimony of the victim alone should not be accepted as a sufficient
foundation for convicting the accused.
The Hon
ble Court failed to appreciate the fact that the offence of
rape has nothing to do with the virginity of the victim because if the loss of
virginity was considered as sine--qua-non for the offence of rape to make
out then no married woman in general could be subjected to rape. This
interpretation of law is unacceptable, appears to be illegal and even
absurd. The court also failed to differentiate between consent and passive
submission as in latter case the victim could be overpowered by the use of
physical power or threat or coercion in the beginning itself and normally
7
no medical evidence would be available in these cases. It is also submitted
that insistence for the independent corroboration in such circumstances
would mean to negate the reality that the offence of rape is generally
committed in isolation or in darkness and no eye-witnesses will be
available for their expected evidence in court. Going by the ethos, morale
and practice in our society it can be said that commission of rape in the
presence of eyewitnesses would be very rare.
In Muhammad Afzal v. The Crown , the victim was raped by two

ticket collectors, on the pretext of taking her to a refugee camp where she
wanted to go after coming out of the Railway station. They later left her at
the Railway Platform. The victim gave contradicting statements about her
consent to the Military Police and then to the sub-inspector at the police
station.
The court held that the victim did not receive any injury in the
struggle nor were her clothes torn. The fact that she did not tell even her
father that she had been violated or deceived also showed that no
deception was practiced nor any force used on the victim.
This case is different from the other cases that have been discussed
in the preceding pages because in this case it was observed by the court
that the rule of corroboration was meant to be applied to accomplices and
a ravished woman was not an accomplice but a victim of crime. Therefore,
corroboration of the victim in a case of rape was not always indispensable.
The thing to be remembered in such cases is whether it is safe to convict
the accused on her solitary statement. This depends upon the
circumstances of each individual case.
In Rajput Bhima Karasan v. The Kutch Government, Bhuj , the

victim, a young Meghwar married woman of about 17 years, lived with her
husband and parents-in-law, and had gone to the field to give food to her
husband and father-in-law. When she was returning home alone from the
field at about noon, the accused, a Rajput boy of 25, waylaid her, caught
hold of her and ravished her against her will and in spite of her protests.
The court held that it should demand some tests of genuineness of

the victim's evidence and in absence of such tests it should accept that
evidence as conclusive. It was true that the lack of those tests was not
victim's fault. It was the police
s fault; but that should not act to the
prejudice to the accused person. The accused should get benefit of doubt.
In this case the court had made an important observation that in case
of rape it was a rule of prudence that there should be corroboration of
testimony of the victim. Such corroboration could seldom be by direct
evidence, corroboration of that sort would be almost always impossible;
but the testimony should be capable of being tested.
Although the court could not make itself free from the requirement
of corroboration but the acknowledgement of absence of direct
corroborative evidence in rape cases was a welcome progress in the
assertion of facts. The first progressive development occurred in 1952,
with the pronouncement of Supreme Court in Rameshwar v. State of
Rajasthan
Woman, who has been raped, is not an accomplice... corroboration

can be dispensed... when it is safe to do so. The rule, which according to
the cases has hardened into one of law is not that corroboration is essential
9
before there can be a conviction, but the necessity of corroboration, as a
matter of prudence, except where the circumstances make it safe to
dispense with.
The judicial stand in Rameshwar case was followed in many cases,

holding that corroboration is not sine qua non of conviction
In Rahim Beg v. State of U.P, the victim (deceased); aged about 12

or 13 years resided with her father and was married about six years but her
Gauna ceremony was not performed. On one morning both the accused
persons, Rahim Beg and Mahadeo, followed the victim who were seen by
two prosecution witnesses when the victim did not arrive at home, her
parents searched for her and at about 4 pm ,her dead body was found lying
under a bush in a Bhinta.
The court held that there were semen stains on the langot of the
accused who was a young man but it could exist because of a variety of
reasons and would not necessarily connect him with the offence of rape. In
this case rape was alleged to have been committed by a fully developed
man on a girl of 10 or 12 years who was virgin and whose hymen was
intact. There was absence of any injuries on the male organ of accused that
would point to his innocence.
Again this case was very disturbing, as the court did not take into
consideration the available evidence against them and acquitted them.
In Pratap Mishra v. State of Orissa , the victim was a five months

pregnant woman of around 23 years at the time of the incident. The victim
was on a pleasure trip to Nandan Kanan with her husband, when she was
raped in the tourist lodge by a number of NCC students; who forced the
door open and took her husband away and then raped the victim in spite of
her protest one after another. The traces of seminal stains were found on
the saya (petticoat) and the underwear of the victim.
The opinions of medical experts showed that it was very difficult for
any person to rape single-handed a grown up and experienced woman
without meeting the stiffest possible resistance from her. It was held to be
doubtful if at all the victim was raped without her consent. It was held on
perusal of the entire evidence, that the accused persons no doubt
committed sexual intercourse with the victim but such an intercourse was
done with the tacit consent of the victim and the connivance of her
husband.
In the opinion of the doctor if the victim had been raped by the three
accused persons, one after the other in quick succession with force and
violence, the abortion would have been immediate and not after a few
days. It was held that the accused persons might have indulged in sexual
intercourse with the victim but not without her consent.
In this case it is apparent that the Supreme Court overlooked the

facts like presence of semen on the undergarments of victim (a married
woman) that normally does not happen in cases of consent. Mere absence
of stiff resistance by the victim could not be considered as consent when
she was in advance stage of her pregnancy because the victim might have
realised that resistance before the accused person would be of no effect
and consequent violence might endanger her life and the life of the baby in
her womb. It is very unfortunate that this peculiar inability of the victim
was construed as consent by the apex court and instead of awarding the
deterrent sentence, it acquitted the accused. The accused never pleaded
11
that they knew the victim or she was paid money for the act. Under the
circumstances, the only inference should have been the commission of
rape by the accused persons.
In Phul Singh v. State of Haryana ,the accused, aged 22 years,

entered into his cousin's house next door, and in broad daylight, raped the
victim, aged 24 years. The Sessions Court imposed a sentence of 4 years
rigorous imprisonment, and the High Court affirmed it in appeal. The apex
court held that the culpability was beyond doubt and upheld the
conviction.
With regard to the quantum of sentence, the Supreme Court held

that ordinarily, rape was violation, with violence, of the private person of a
woman -- an outrage by all cannons. In Indian conditions of escalating sex
brutality, a 4-year term for rape was not excessive. But in the present case,
the accused was in his early 20s and signs of repentance were seen. The
victim and her parents had forgiven the molester who was the first cousin
of the victim's husband. While it was possible that the accused might
procure such condonation from an unwilling victim, the fact remained that
two families being close cousins were ready to take a lenient view of the
situation. However, this did not bind the court in any manner. Therefore,
taking an overall view of the familiar and criminal factors involved, the
court reduced the imprisonment from four years to two years rigorous
imprisonment.
The Apex Court in this case tried to justify the award of lower
sentence than the minimum prescribed period by taking into consideration
the near relationship of accused to the victim and mutual understanding
and forgiveness between the two families. The court emphasized more on
the rehabilitation of accused in social life. Accused persons and their

families can use this judgment to put pressure upon the victim to withdraw
the case in the guise of social compromise resulting in the increased social
exploitation of rape victim.
In Rafiq v. State of U. P.,the victim, a middle-aged Bal- Sewika in a

village welfare organisation, was sleeping in a girlsschool where she was
raped by the accused with his three accomplices.
The court observed that corroboration, as a condition for judicial

reliance on the testimony of a victim was not a matter of law, but a
guidance of prudence under given circumstances. Indeed, from place to
place, from age to age, from varying lifestyles and behavioural complexes,
inference from a given set of facts, oral and circumstantial, might have to
be drawn not with dead uniformity but realistic diversity lest rigidity in the
shape or rule of law in this area be introduced through a new type of the
precedential tyranny. The same observation held well in respect of the
presence or absence of injuries on the person of the aggressor or the
aggressed.
The court further observed that the escalation of such crimes had
reached proportion to a degree that exposed the pretensions the nation's
spiritual leadership and celluloid censorship, put our cultural heritage and
humane claims to shame and betrayed a vulgar masculine outrage on
human rights of which woman's personal dignity was a sacred component.
It further observed that the facts and circumstances often varied

from case to case, the crime situation and the myriad psychic factors,
social conditions and people's life styles might fluctuate, and so, rules of
13
prudence relevant in one fact situation might be inept in another. When
rapists were reveling in their promiscuous pursuits and half of the
humankind -- womankind -was protesting against its hapless lot, when no
woman of honour would accuse another of rape in case she sacrificed
thereby what was dearest to her, the court could not cling to a positive
formula and insisted on corroboration of victim's testimony. Even if, taken
as a whole, the case was spoken to by the victim strike for a juaicial mind
as probable. When a woman was ravished what was inflicted was not
merely physical injury, but
the deep sense of some deathless shame.

A rape! a rape! Yes, you have ravish
d justice; forced her to do
your pleasure.
Hardly a sensitised judge who saw the conspectus of circumstances

in its totality would reject the testimony of a rape victim unless there were
very strong circumstances militating the veracity. Judicial response to
human rights could not be blunted by illegal bigotry.
The court, observed that there was considerable public and

parliamentary attention to the violent frequency of rape cases and it was
time that the court reminded the nation that deterrence came more
effectively from quick investigations, prompt prosecution and urgent
finality, including special rules of evidence and specialised agency for trial.
Mere mechanical increase of punitive severity might yield poor dividends
for women victims. The strategy for a crime free society was not the
draconian severity, processual celebrity and prompt publicity among the
concerned community. Lawlessness was abetted by a laggard, long-lived,
lacunose and legalistic litigative syndrome rather than by less harsh
provisions in the Penal Code. The focus must be on evil. Rape for a
woman was deathless shame, and must be dealt with as the gravest crime
against human dignity.
In this case, Justice Krishna Iyer had delivered a highly sensitive

and appreciable judgment upholding the rights of the rape victim and
stated different circumstances in which these rights could be given to the
victims. He had given a number of directions to the trial courts to try the
cases involving rape.
In Harpal Singh and another v. State of Himachal Pradesh, an FIR

was registered ten days after the commission of rape on the minor girl. It
was held that the explanation given for the delay of ten days was
reasonable because the honour of family was involved and therefore, its
members had to decide whether to take the matter to court or not. It was
not uncommon that such considerations delay action on the part of the near
relations of the young victim.
The court further held that the evidence of victim before Magistrates
and Sessions Judge was consistent and reliable. The question of consent
did not arise as the victim was below 16 years of age. The fact that no
injury was caused to the private parts or that victim was used to sexual
intercourse was immaterial.
The apex court rightly upheld the conviction on the sole unshaken
testimony of the victim, a minor girl and brought a welcome development
in delinking of victim's character with the conviction of the accused in the
case and also doing away with the mechanically foisted requirement of
presence of injury on the private part of the victim.
15
In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, the
Supreme Court has observed:
To say at the beginning what we cannot
help saying at the end: human goodness has limits- human depravity has
none. The need of the hour however, was not exasperation.
In this case the victim and the other girl child went to the house of
accused in order to meet his daughter, belonging to their own age group of
10 or 12, who happened to be their friend. The accused induced them to
enter his house by creating an impression that she was at home though in
fact she was not. Once they were inside, the accused closed the door,
undressed himself in the presence of both the girls, and exposed himself.
He asked other girl to indulge in an indecent act. She started crying and
fled from there. The victim could not escape. She was pushed into a cot,
and was made to undress and sthe accused sexually assaulted her.
The Sessions Judge found the accused, a government servant, guilty

of serious charges of sexual misbehaviour with young girls aged about 10
or 12 years and convicted him for the offence of rape, outraging the
modesty of women, and wrongful confinement. The appeal to the High
Court substantially failed as the Court affirmed the order of conviction for
wrongfully confining the girls and for outraging the modesty of two girls
but with regard to the more serious charge of rape on the victim, it came to
the conclusion that evidence established an offence of attempt to commit
rape and not rape.
The Court framed the following question:
Why should the evidence of girl or the woman who complained of

rape or sexual molestation be viewed with the aid of spectacles fitted with
lenses tinged with doubt, disbelief or suspicion? To do so was to justify

the charge of male chauvinism in a male dominated society.
The consequences of such charges would have disastrous effect on

the future of unmarried girl and might ruin the marital life of a married
woman. Commenting on the Indian circumstances, the Apex Court
enumerated few of the following main reasons in this case which ruled out
the possibility of fabrication of rape charges.
(i) A girl or a woman in the tradition bound non permissive society of

India would be extremely reluctant even to admit that any incident
which was likely to reflect on her chastity had ever occurred.
(ii) She would be conscious of the danger of being ostracised by the

society or being looked down by the society including her own
family members, relatives, friends and neighbours.
(iii) She would have to brave the whole world.
(iv) She would face the risk of losing the love and respect of her own
husband and near relatives, and of her matrimonial home and
happiness being shattered.
(v) If she were unmarried, she would apprehend that it would be difficult
to secure an alliance with a suitable match from a respectable or an
acceptable family.
(vi) It would almost inevitably and almost invariably result in mental

torture and suffering to herself.
'(vii) The fear of being taunted by others would always haunt her.
17
(viii) She would feel extremely embarrassed in relating the incident to
others being overpowered by a feeling of shame on account of the
upbringing in a tradition bound society where by and large sex was
taboo.
In view of these and similar factors the victims and their relatives were not
too keen to bring the culprit to book. And when in the face of these factors
the crime was brought to light there was a built-in assurance that the
charge was genuine rather than fabricated.
The court further held that on principle the evidence of a victim of

sexual assault stood on par with evidence of an injured witness. Just as a
witness who had sustained an injury which was not shown or believed to
be self inflicted was the best witness in the sense that he was least likely to
exculpate the real offender, the evidence of a victim of a sex-offence was
entitled to a greater weight, absence of corroboration notwithstanding.
And while corroboration in the forms of eyewitness account of an
independent witness might often be forthcoming in physical assault cases,
such evidence could not be expected in sex offences, having regard to the
very nature of the offence.
It was held that corroboration was not the sine qua non for a
conviction in a rape case. In the Indian setting, refusal to act on the
testimony of a victim of sexual assault in the absence of corroboration as a
rule, was adding insult to injury. If the evidence of the victim did not suffer
from any basic infirmity, and the
probabilities-factordid not render it
unworthy of credence, as a general rule, there was no reason to insist on
corroboration except from the medical evidence, having regard to the

circumstances of the case, medical evidence could expect to be
forthcoming subjected to be following qualification: Corroboration might
be insisted upon where a woman having attained the majority was found in
a compromising position and there was a likelihood of her having leveled
such an accusation on account of instinct of self-preservation or when
probability-factor was found to be out of tune.
It could be observed that the need of the hour was to mould and
evolve the law so as to make it more sensitive and responsive to the
demands of the time in order to resolve the basic problem:
whether,
when, and to what extent corroboration to the testimony of a victim of rape
was essential to establish the charge. And the problem has a special
significance for the women in India, for, while they have often been
idolized, adored, and even worshiped, for ages they have also been
exploited and denied even wanted justice - 60 crores anxious eyes of
Indian women were, therefore, focused on this problem.
This is a landmark judgment of the Supreme Court that gave a new

insight to deal rape cases from the victim's perspective. It shows genuine
concern for the plight of the victim and realised the social circumstances.
The testimonial evidence of the victim of rape at least secured a reasonable
place in the scheme of criminal trial and is a welcome departure from the
earlier judicially created barriers between the victim of rape and justice.
In Balwant Singh and others v. State of Punjab and Saudagar Singh

v. State of Punjab,the victim, aged 19 or 20 years was a student of BA and
she was going to college to collect her certificates. Accused, who were
19
known to her, forcibly took her in a car to the canal bank and there in a
groove of eucalyptus trees raped her one by one.
The court held that where the evidence of victim that she was raped
by accused persons one after the other was supported by the medical
report and by the evidence given by her father, no importance could be
attached to the fact that the police had disbelieved the genuineness of the
prosecution story and had treated the case as cancelled more so when the
police had withheld from the court the report of examination by the
chemical examiner of the vaginal swabs of the victim as to the presence of
semen.
It was further held that it could not be said that whenever the
resistance was offered there must be some injury on the body of the
victim. The accused were four in number and the victim was a girl of 19 or
20 years of age. She was not expected to offer such resistance as would
cause much injury to her body. As per the medical report, she had red
abrasions on her right breast. The absence of injury on the back of the
victim or any part of her body did not falsify the case of rape by the
accused on her.
In this case, the Supreme Court rightly accepted the testimony of

victim against the opinion of police, the investigating agency, keeping in
view of the presence of other evidences that supported the prosecution
story.
In Pramod Mahto v. State of Bihar, the accused persons entered the

house through the roof after dismantling a portion of it and thereafter they
committed rape on the victims while one accused stood guard over them
with a gun in his hands in order to overawe them and made them submit to
the rape committed on them without protest. The court held the accused
were guilty of the offence.
This case would be remembered for having laid down with regard to
Explanation I of section 375 that in a case of gang rape it was not
necessary that the prosecution should adduce clinching proof of a
complete act of rape by each one of the accused on the victim where there
were more than one in order to find the accused guilty. It also held that
even if communal feelings had run high, it was inconceivable that an
unmarried girl and two married women would go to the extent of staking
their reputation and future in order to falsely set up a case of rape on them
for the sake of communal interests.
The faith reposed in the testimony of the victims of gang rape in

communally tense situation is a welcome judgment and true recognition of
womanhood.
In Vijayan Pillai v. State of Kerala,it was held that consent was an

act of reason accompanied by deliberation. Consent meant active will in
mind of a person to permit the doing of the act of and knowledge of what
was to be done, or of nature of the act that was being done. Consent
supposed a physical power to act, a moral power of acting and a serious
and determined free use of these powers.
The decision of Kerala High Court in this case is praiseworthy as it gave a

correct definition of consent.
21
In State of Haryana v. Prem Chand and others, the accused along
with one other person contended that Ravi Shankar committed rape on the
victim in the field at Bhawani Khera on two occasions. Ravi Shankar
abducted victim from Bhawani Khera to take her to Jammu, but the two
other accused, who were police officials posted at Bhawani Khera police
station, took Ravi Shankar and the victim, when they arrived at the bus
stand of Bhawani on their way to Jammu, to the said police post and put
Ravi Shankar and the victim in different rooms and committed rape on
victim one after the another and thereafter accused took Ravi Shankar and
the victim girl to the railway station and left them there.
The Supreme Court reduced the sentence to five years from ten
years. Then the State of Haryana filed this review petition to enhance the
sentence. But it was refused.
It was held that the factors like the character or reputation of the
victim were wholly alien to the very scope and object of section 376 and
could never serve either as mitigating or extenuating circumstances for
imposing the sub-minimum sentence with the aid of the proviso to section
376(2). Thus where the Supreme Court in its judgment had used the
expression
conductin the lexigraphical meaning for the limited purpose
of showing as to how the victim had behaved or conducted herself in not
telling anyone for about five days about the sexual assault perpetrated on
.her and it was observed that the peculiar facts and circumstances of the
case coupled with the conduct of the victim girl did not call for minimum
sentence as prescribed under section 376(2), it could be said that the
Supreme Court neither characterised the victim, as a woman of
questionable character and easy virtue nor made any reference to her
character or reputation.
On the question of sentencing, while reducing it from 10 years to

five years, it expressed its opinion that this court was second to none in
upholding the decency and dignity of womanhood and it had not expressed
any view in its judgment that character, reputation or status of a rape
victim was a relevant factor for consideration by the court while awarding
the sentence to a rapist.
The Supreme Court judgment in the Suman Rani case is distressing

not just because the policemen who were convicted of custodial rape by
three lower courts had their sentence reduced by half, using the proviso of
adequate and special reasons

, which empowers a court to reduce the
sentence, but because of the reason given by the court for this mitigation.
The gist of these is that victim's character was such that she more or less
asked for it and that in the circumstances the men were not wholly to
blame.
Significantly, the Sessions Court judge who gave an earlier ruling in

Suman Rani
s case had stated that all said and done, even a girl of easy
virtue was also entitled to all the protection of law and could not be
compelled to sexual intercourse against her will and without her consent.
Offence of rape and other allied offences were created for the protection of
fallible, earthly mortals, and not for goddesses.
In State of Maharashtra v. Madhulkar Narayan Mardikar ,the

accused, Madhulkar, was serving as a police inspector at Bhaiwandi Town
23
Police Station. In the night, he went to the hut of the victim in uniform and
forcibly raped her in her hut.
The court held that offender-victim relationships might be a better

test for determination of questionable consent. Legal traditions were such
that rape accusations were looked upon with some suspicion in cases
where there was anything more than passing acquaintanceship. But it was
not a correct position of law.
It further held that in order to gain a proper understanding of rape

from victim's perspective, it was necessary to include more sexual acts
than the law did at present, it was also important to make distinction
between those sexual acts finally included. Thus, rape could be defined as
sexual access gained by any means where the woman's overt genuine
consent was absent and where there was an absence of relative equality.
Only evidence of the positive desire dignified sexual intercourse and made
it joyful and anything less was against her will and wisdom ought to be
considered as rape.
The decision in this case deserves a bouquet. It serves to correct

certain indefensible extensions and assumptions drawn by patriarchal laws,
which violate the human rights and right of privacy of a category of
women - referred to
women of easy virtue
. These assumptions often aid
and abet acquittals in cases relating to crimes committed by men in
uniform, i.e., the police.
In State of Karnataka v. Mahabaleshwar Gourya Naik,the accused,

Mahabaleshwar Gourya Naik, 18 years old, wrongfully restrained the
victim girl, aged about 15 years, studying in 9th standard, and committed
rape without her consent and during the course of said offence, the
accused caused hurt to the victim. The victim committed suicide before the
trial of the case and her evidence could not be recorded.
The trial court convicted the accused for wrongfully restraining and
causing simple hurt to the victim and acquitted him of offence of rape.
Both trial and High Court on appeal took the view that the victim was dead
and not available for examination, the accused could not be convicted for
committing rape.
In the Supreme Court, Ratnavel Pandian J., pointed out that on the
basis of evidence of the prosecution witnesses and medical evidence, it is
established that there was an attempt of rape, if not rape itself. The judge
observed:
As stated merely because a victim was dead and consequently could

not be examined can never be a ground to acquit the accused if there was
evidence otherwise available proving the criminal act of the accused
concerned.
It was held that an offence of attempt to rape was committed. The

Supreme Court sentenced the accused to undergo rigorous imprisonment
of five years. In this case, the Supreme Court had taken out the procedural
law on rape from the thicket of technicalities and led it to the road of plain
common sense to provide justice to the hapless victim of rape.
In P. Rathinam v. State of Gujarat, the victim, a tribal woman, was

raped in the presence of her husband by some police officers. A
Commission was appointed by the Supreme Court to find out the true state
of affairs. The Commission submitted its report holding the incident to be
25
true and also pointing out the officers guilty of dereliction of duty in the
matter. On the basis of this report, departmental inquiries were conducted
against the officers. When the matter came up for hearing on 2.4.1993,
some of the inquiries were concluded but others were still under process of
completion.
The Government filed an affidavit explaining the stage of inquiry

and the reasons for the delay. On this the Court observed that while it did
not propose to deal with the reasons assigned for delay in finalization in
respect of each of the inquiries it must say it was not satisfied with the
reasons assigned.
The inuiries were pending over the last several years. The Court made the
following directions:
1. All the inquiries pending as on today should be concluded within

three months subject, of course, to any other order of the stay
granted by a competent Court on or before this date. It directed the
said inquiries should proceed unhindered hereafter and should not
be stayed by any Court or Tribunal hereinafter...Any delay or
violation of this order, it was made clear, should be viewed
seriously and the person responsible therefore should be
answerable.
2. A sum of Rs 50,000/- should be paid as interim compensation, by

the State of Gujarat, to the victim.
This case illustrates the utter brutality and lawlessness indulged in

by some of the police personnel and the ways in which justice is delayed
in bringing the culprits to book.
This case is also a notable decision of the Supreme Court in which

court suggested to the government to take steps to enact legislation to
ameliorate the plight of the victim of rapes and to provide compensation to
them. This welcome trend enhances the prestige of the apex court and
portrays its genuine concern for weaker sections of society.
In Dhananjoy Chatterjee alias Dhana v. State of West Bengal,the victim,

18 year old school going girl, was barbarically raped and murdered by the
accused, who was the security guard of the society in which the victim
resided.
It was held by the apex court that keeping in view the medical
evidence and the state in which the body of the deceased was found, it was
obvious that the most heinous type of barbaric rape and murder was
committed on a helpless and defenseless victim. The faith of the society by
such a barbaric act of the guard, got totally shaken and its cry for justice
becomes louder and clearer. The offence was not only inhuman and
barbaric but it was totally ruthless crime of rape followed by the
cold-blooded murder and an affront to the human dignity of the society.
The savage nature of the crime shocked judicial conscience.
The Supreme Court held that measures of punishment in a given

case must depend upon the atrocity of crime; the conduct of the criminal
and the defenceless and unprotected state of the victim. Imposition of
27
appropriate punishment was the manner in which the courts responded to
the society
s cry for justice against the criminals. Justice demanded that
courts should impose punishment befitting the crime so that the courts
reflected public abhorrence of the crime. The courts must not only keep in
view the rights of the criminal but also the rights of victim of crime and the
society at large while considering imposition of appropriate punishment.
It was further held that there were no extenuating or mitigating

circumstances whatsoever in the case. The Court agreed that a real and
abiding concern for the dignity of human life was required to be kept in
mind by the courts while considering the confirmation of the sentence of
death but cold-blooded preplanned brutal murder, without any
provocation, after committing rape on an innocent and defenseless young
girl of 18 years, by the security guard certainly made this case a
rarest of
the rarecases which called for no punishment other than the capital
punishment.
The considerations of social and human values and expectations

from the apex Court in its activist formare satisfied by this sensible
pronouncement of the apex Court.
In Delhi Domestic Working Women's Forum v. Union of India ,a

public interest litigation was filed by the petitioner's forum under Article
32 of the Constitution of India.
On 10 Feb 1993 six tribal girls from Bihar, who were working as
domestic servants in Delhi, boarded the Muri Express at Ranchi for Delhi.
The train reached Khurja station at 11 P. M. and while they were all
asleep. One of them got up and complained to others that somebody was
teasing her. Then 7 to 8 accused, Army Jawans, came to them and

molested them. The accused threatened the victims that if they raised any
hue and cry, they would be thrown out of the running train. Four of them
were raped by the accused. Two of the six girls saved themselves by
hiding under the seats. The victims tried to lodge a complaint but nobody
tried to pay heed to them. As soon as the train reached the New Delhi
station, the accused ran here and there but the victims managed to catch
hold of one accused with the help of public and officers of the Army and
FIR was lodged.
Justice Mohan delivering the judgment of the Court drew attention

to the defects of the existing system. First complaints were not given the
attention that was warranted and the victim often said that giving evidence
in a rapes trial was an ordeal worse than rape itself. In this context the
judge cited the views of writers like Jennifer Temkin, Kelly Shapland and
Reilly. In view of this the court found it necessary to give the broad
parameters in assisting the victims of rape such as:
1. Complainants of sexual assaults should be provided with legal

representation. The victim's advocate should not only assist her in
filing the complaint but also guide her in getting other kinds of
assistance like psychiatric and medical,
2. Legal assistance would have to be provided at the police station as

well as in view of the distressed state of mind of the victim,
3. Police should be under a duty to inform the victim of the right to get
representation before asking her questions and the police report
should state that she was so informed,
29
4. A list of advocates should be prepared who were willing to act in
these cases ,
5. Such advocates should be appointed by the Court, but to avoid

delay advocates might be authorised to act in police station before
permission from the court had been obtained,
6. A criminal injuries compensation board should be set up,
7. Compensation for the victim should be awarded by the court on the

conviction of the offender and by the criminal injuries compensation
board whether or not a conviction had taken place.
The court, while concluding directed that in view of the provisions

contained in section 1 of the National Commission For Women Act, 1990,
the Commission would have to evolve such scheme as to wipe out the
tears of such unfortunate victims; and the scheme should be prepared
within six months from the date of the judgment; and the Union of India
should examine and should take necessary steps for the implementation of
the scheme at the earliest.
No doubt section 357(3) of the CrPC, 1973 enables a criminal court

to grant compensation to a victim but this provision has two drawbacks.
Firstly, the award of compensation lies at the discretion of the court;
secondly, if an accused person was not having the means to pay
compensation, the remedy was worthless. In other words there was no
obligation on the State to provide for compensation.
` In India, even though rapes, gang rapes and mass rapes have drawn
the attention of media, the law is far behind in providing compensation to
the victims of crimes in general. In the light of the above discussion this
judgment is an important landmark step in the direction of upholding
victim's right.
In Bodhisattwa Gautam v. Ms. Subra Chakraborty,the accused had

entered into a false marriage with the victim and she became pregnant. He
made her undergo an abortion. He repeated the same thing again. When
she asked him to maintain her, he disowned her on the ground that there
was no marriage. The court whilst refusing the accused
s request to quash
the prosecution also expatiated on rape law. The court ruled that rape was
not merely an offence under the Penal Code; it was also a violation of
woman's right to live with dignity and personal freedom. Saghir Ahmed, J.
speaking on behalf of the Court said:
Rape was thus not only a crime against the person of a woman
(victim), it was a crime against entire society. It destroys the entire
psychology of a woman and pushes her into deep emotional crisis.... It was
a crime against basic human right and was also violative of the victim's
most cherished of the Fundamental Rights, namely, the Right to Life
contained in Article 21. To many feminists and psychiatrists, rape was less
a sexual offence than an act of aggression aimed at degrading and
humiliating women.
The court recognized that fundamental rights could be enforced

even against private bodies and individuals. The court held that a court
trying a case for rape had jurisdiction to award even interim compensation
during the pendency of the trial. The court ordered that the accused should
31
pay to the victims a sum of Rs. 1000 every month as interim compensation
until the case was decided. She was entitled to receive arrears of such
interim compensation from the date on which the complaint was filed.
The higher judiciary has shown concern for women's human rights
in recent times. The Supreme Court has also been greatly influenced by the
International declarations and conventions on human rights. An entirely
new and very revolutionary illustration of judicial activism was to be found
in this case. This is indeed a very significant decision of the Supreme
Court. Justice Saghir Ahmed rightly said,
the rape law do not,
unfortunately, take care of the social aspect of the matter and were inept in
many respects
.
In State of Punjab v. Gurmit Singh, an appeal was directed against

the judgments and order of Additional Judge, Special Court, Ludhiana by
which the accused were acquitted of the charges of abduction and rape.
The judgment impugned in this appeal presents a rather disquietening and
disturbing feature. It demonstrates lack of sensitivity on the part of the
court by casting unjustified stigmas on a victim aged below 16 years in a
rape case, by overlooking human psychology and behavioural
probabilities. An intrinsically wrong approach while appreciating the
testimonial potency of the evidence of the victim has resulted in
miscarriage of justice.
The brief facts of the prosecution case were:
The victim, a young girl below 16 years of age, was studying in 9th
class at the relevant time in government high school. The Matriculation
examinations were going on at the material time. On 30th March 1984 at
about the 12.30 PM after taking her exam, the victim was going to the
house of her maternal uncle and when she had covered a distance of about
hundred karmas, from the school a blue Ambassador car being driven by a
sikh youth aged 20/25 years came from behind. Accused Ranjit Singh
came out of the car and caught hold of the victim from her arm and pushed
her inside the car. Accused Gurmit Singh threatened the victim, that in
case she raised an alarm she would be done to death. All the three accused
drove her to tubewell of accused Ranjit Singh . She was taken to the
Kothaof tubewell. There accused Gurmit Singh committed rape on her.

Then the other two accused came in one by one and committed rape upon
her. They all subjected her to sexual intercourse once again during the
night against her will.
The apex court held that the grounds on which the trial court
disbelieved the version of the victim were not at all sound. The findings
recorded by the trial court rebelled against the realism and lost their
sanctity and credibility. The court lost sight of the fact that the victim was
a village girl. She was a student of 9th class. It was wholly irrelevant and
immaterial that she was ignorant of the difference between a Fiat car, an
Ambassador or a Master car. No fault could also be found with the
prosecution version on the ground the victim had not raised an alarm while
being abducted. If the investigating officer did not conduct the
investigation properly or was negligent in not being able to trace out the
driver or the car, it could not become a ground to discredit the testimony
of victim.
In the opinion of the court there was no delay in lodging of the FIR
either and if at all there was some delay, the same had not only been
33
properly explained by the prosecution but in the facts and circumstances of
the case was also natural. The court could not overlook the fact that in
sexual offences delay in the lodging of the FIR could be due to variety of
reasons particularly the reluctance of the victim or her family members to
go to the police and complain about the incident that concerned the
reputation of the victim and the honour of her family. It was only after
giving it a cool thought that a complaint of sexual offence was generally
lodged.
The conduct of victim in not telling the incident to anybody except

her mother appeared to be most natural. The trial court overlooked that a
girl in a tradition-bound non-permissive society in India, would be
extremely reluctant even to admit that any incident which was likely to
reflect upon her chastity had occurred, being conscious of the danger of
being ostracized by the society or being looked down by the society.
The courts must, while evaluating evidence, remain alive to the fact
that in a case of rape, no self-respecting woman would come forward in
court just to make a humiliating statement against her honour such as was
involved in the commission of rape on her. In cases involving sexual
molestation, supposed considerations which had no material impact on the
veracity of the prosecution case or even discrepancy in the statement of
the victim should not, unless the discrepancies were such which were of
fatal nature, be allowed to throw out an otherwise reliable prosecution
case. The inherent bashfulness of the females and the tendency to conceal
outrage of sexual aggression were factors, which the court should not
overlook. The testimony of the victim in such cases was vital and unless
there were compelling reasons, which necessitated looking for
corroboration of statement, the court should find no difficulty to act on the

testimony of victim of sexual assault alone to convict an accused where
her testimony inspired confidence and was found reliable. Seeking
corroboration of statement before relying upon the same, as alone, in such
cases amounted to adding insult to injury.
The evidence of victim of sexual assault stood almost on a par with

the evidence of an injured witness and to an extent was even more reliable.
Corroborative evidence was not an imperative component of judicial
credence in every case of rape. Corroboration, as a condition for judicial
reliance on the testimony of the victim, was not a requirement of law but a
guidance of prudence under given circumstances.
The court expressed its strong disapproval of the approach of the

trial court and in casting a stigma on the character of the victim. Even in
cases, unlike the present one, there was acceptable material on the records
to show that the victim was habituated to sexual intercourse; no such
inference like the victim being of loose moral character was permissible to
be drawn from those circumstances alone. Even that victim had a right to
refuse to submit herself to sexual intercourse to anyone and everyone
because she was not a vulnerable object or prey for being sexually
assaulted by anyone and everyone.
The court set aside the judgment of the trial court and convicted all
the three accused for offences under sections 363/366/368 and 376 Indian
Penal Code. So far as the sentence was concerned, the court had to strike
the balance. The accused as well as the victim must have got married and
settled down in life. The court sentenced accused for the offence under
section 376, IPC to undergo five years rigorous imprisonment each and to
35
pay a fine of Rs 5000 each and in default of payment of fine to 1 year's
rigorous imprisonment each. For the offences under Section 363, IPC the
court sentenced them to undergo three years rigorous imprisonment each,
but imposed no separate sentence for the offences under sections 366/ 368
IPC.
After deciding the case, the court discussed one other aspect of such
cases of sexual assaults in detail. It stated that crime against women in
general and rape in particular was on the increase. It was a sad reflection
on the attitude of indifference of the society towards the violation of
human dignity of the victims of sex crimes. We must remember that a
rapist not only violated the victim's privacy and personal integrity, but
inevitably caused serious psychological as well as physical harm in the
process. Rape was not merely a physical assault - it was often destructive
of the whole personality of the victim. A murderer destroyed the physical
body of his victim; a rapist degraded the very soul of the helpless female.
The courts, therefore, shoulder a great responsibility while trying an
accused on charges of rape. They must deal with such cases with utmost
sensitivity. The courts should examine the broader probabilities of a case
and not swayed by minor contradictions of insignificant discrepancies in
the statements of victim, which were not of a fatal nature, to throw out an
otherwise reliable prosecution case. If evidence of the victim inspired
confidence, it must be relied upon without seeking corroboration of her
statement in material particulars.
There had been lately, lot of criticism of the treatment of the victims
of sexual assaults in the court during their cross-examination. The
provisions of Evidence Act regarding relevancy of facts notwithstanding,
some defence counsel adopted the strategy of continual questioning of the

victim as to the details of rape. The victim was required to repeat again
and again the details of the rape incident not so much as to bring out the
facts on record or to test her credibility but to test her story for
inconsistencies with a view to attempt to twist the interpretation of events
given by her so as to make them appear inconsistent with her allegations.
The courts, therefore, should not sit as a silent spectator while the
victim of crime was being cross-examined by the defence. It must
effectively control the recording of the evidence in the court. While every
latitude should be given to the accused to test the veracity of the victim
and the credibility of her version through cross-examination, the court
must also ensure that cross-examination was not made a means of
harassment or causing humiliation to the victim of crime.
A victim of rape, it must be remembered, had already undergone a

traumatic experience and if she was made to repeat again and again, in
unfamiliar surroundings what she had been subjected to, she might be too
ashamed or even nervous or confused and her silence or a confused stray
sentence might be wrong fully interpreted as
discrepancies and
contradictionsin her evidence.
The court conducting the inquiry and trial of a rape case involves a
duty on the court to conduct the trial of rape cases etc invariably
in
camera
. It would enable the victim of crime to a little comfortable and
answered question with greater ease in not too familiar surroundings. Trial
in camera would not only be keeping with the self-respect of the victim of
crime and in tune with the legislative intend but was also likely to improve
the quality of the evidence of the victim because she would not be so
37
hesitant or bashful to depose frankly as she might be in an open court,
under the gaze of public. The improved quality of her evidence would
assist the courts in arriving at the truth and sifting truth from falsehood.
Trial of rape cases in camera should be the rule and an open trial in such
cases an exception.
When trial were held in Camera, it would not be lawful for any
person to print or publish any matter in relation to the proceedings in the
case, except with the previous permission of the court as envisaged by
Section 327(3), Cr PC. Wherever possible, it might also be worth
considering whether it would not be more desirable that the cases of
sexual assault on the females were tried by lady judges, wherever
available, so that the victim could make her statement with greater ease
and assist the court to properly discharge their duties without, allowing the
truth to be sacrificed at the altar of rigid technicalities while appreciating
evidence in such cases.
The courts should, as far as possible, avoid disclosing the name of

the victim in their orders to save further embarrassment to the victims of
sex crime. The anonymity of the victim of the crime must be maintained as
far as possible through out.
No praise is high for judgment rendered by A. S. Anand J. in this

case. It is notable for its empathy for the victims of rape in the trial process
which is justly regarded by many of the victims as worse than the rape
itself. The judgment also draws attention to the duties of the trial courts in
relation to the trial of sex offences and in particular to avoid the disclosure
of the name of the victim.
This judgment is a landmark and trendsetter judgment that has been

followed by the courts later on, while deciding the cases involving sexual
offences, in almost all the cases.
In State of Rajasthan v. Ram Narain, while the victim, aged

between 15 to 17 years, was returning from her uncle
s house to her
parent's house, the accused enticed her by telling her that other women
folk had assembled at the outskirts of the village to go to circus, and
induced her to accompany them. She accompanied them to the outskirts
but did not find the womenfolk. The accused then forced her at knifepoint
to accompany them to Sirchi, and then to Jaipur. Later she was taken to
Martipura where one of the accused had sexual intercourse with her.
Subsequently, the father of the victim recovered her from the house of that
accused.
The trial judge found that accused guilty under sections 376,366 and
of 342 of the IPC and sentenced him to seven years imprisonment, and the
other accused were also convicted under sections 366 and 342 of the IPC.
The accused appealed against the conviction in the Rajasthan High Court.
The High Court reduced their sentence to the period already undergone,
vis., 1 and 1/2 months on the ground that the accused was 18 plus years
old when the offence was committed.
Before the Supreme Court the usual pleas that the victim was the
consenting party and that there was a month
s delay in filing the FIR, were
taken. The Court had no difficulty in rejecting the pleas in view of the
victim's age (15 to 17 years) and medical evidence. Setting aside the
39
judgment of the High Court, the Supreme Court observed that the High
Court committed a great error of law, in reducing the sentence.
The Supreme Court enhanced the sentence of the first accused to

five years under section 376 and a fine of Rs 2000/ -. All the accused were
convicted under sections 366 and 342 to five years and one year
respectively and a fine of Rs 1000/-. The Court further ordered that the
amount of the fine be paid to the victim.
In State of A. P. v. Gangula Satya Murthy , the accused, a young

married man had developed infatuation for the victim (deceased) who was
residing in his neighbourhood. The victim used to visit the accused
s house
to watch television programmes.
On the fateful evening, the victim stepped into the accused

s house
for watching the telecast programmes. As the accused was all-alone then
in the house, he subjected the victim to sexual intercourse by forcibly
putting her on the cot. When she threatened that she would complain to her
parents the accused caught hold of her neck and throttled her to death.
It was observed by the apex court that even if the trial court formed
an opinion, from the absence of hymen that the victim had sexual
intercourse prior to the time when she was subjected to rape by the
accused she had every right to refuse to submit herself to sexual
intercourse by the accused.
It is a path-breaking judgment by Thomas, J., in which he stated

that a strong exception was taken to an approach which says that if an
unmarried woman was habituated to sexual intercourse, it was taken that
she was a woman of easy virtue and as such more likely to be a consenting
party.
In this case, it was also observed that how the courts should
proceed to deal with cases of rape. The courts were expected to show
great responsibility while trying an accused on charges of rape. They must
deal with such cases with utmost sensitivity. The courts should examine
the broader probabilities of a case and not get swayed by minor
contradictions or insignificant discrepancies in the statement of the
witnesses, which were not of a fatal nature to throw out allegations of
rape. This was all the more important because, of late, crime against
women in general and rape in particular on the increase. The courts must
deal with rape cases in particular with utmost sensitivity and appreciate the
evidence in the totality of the background of the entire case and not in
isolation.
These type of guidelines are needed and expected from the Apex
Court to sensitise the lower judiciary, which it issued justly in the present
case.
In Chairman, Railway Board v. Chandrima Das, a practicing

advocate of Calcutta High Court filed a petition under Article 226 of the
Constitution against Chairman, Railway Board Others claiming
compensation for the victim, Bangladeshi National who was gang raped by
many including employees of Railway in a room at Yatri Niwas at Howrah
Station of Eastern Railways.
On the basis of the facts High Court awarded the sum of Rs. 10 lacs as
compensation for victim. The High Court was of the opinion that rape was
41
committed at Rail Yatri Niwas belonging to Railways and perpetrated by
Railway employees.
The apex court awarded compensation of ten lacks to that alien

woman under Article 21 of the Constitution. The court also relied upon
international human rights instruments and observed that the International
Covenants and Declarations as adopted by the United Nations had to be
respected by all signatory States.
This case is a unique example of recognition of human rights of the

rape victims and also the liability of State for acts done by its staff. Victim
compensation has also been recognized as the need of hour in this
judgment. The Apex Court had adhered to the principle of
Vasudham
Kutumbhkamin this case and had been more graceful in awarding
compensation to the victim, a Bangladeshi woman. This activism of the
Supreme Court is praiseworthy.
In State Government of N.C.T of Delhi v. Sunil , the two accused

persons committed rape on the victim, a little girl, and murdered her after
the act. Trial Court held the accused guilty but the High Court, on appeal,
acquitted them.
The Apex court held on consideration of the entire evidence that it

had no doubt that the trial court came to the correct conclusion that the
two accused were the rapists who subjected victim to such savagery
ravishment. A Division Bench of the High Court had grossly erred in
interfering with such a correct conclusion made by the trial court, as
reasons adopted by the High Court for such interference were very
tenuous. Nonetheless it was difficult to enter upon the finding that the
accused were equally guilty of murder of victim.
It could happen during the course of violent ravishment committed

by either both or by one of the rapists without possibly having any
intention or even knowledge that their action would produce any such
injury. Even so, the rapists could not disclaim knowledge that the acts
done by them on a little infant of such a tender age were likely to cause its
death. Hence, they could not escape conviction from the offence of
culpable homicide not amounting to murder.
In this case High Court appeared to be determined to question every

points rose by the prosecution that might go against the defence. It clearly
shows the indifferent attitude of the judiciary even at the level of the High
Court.
In State of U.P. v. Pappu,the Court held that even in a case where it

is shown that the girl is a girl of easy virtue or a girl habituated to sexual
intercourse, it may not be a ground to absolve the accused from the charge
of rape. It has to be established that there was consent by her for that
particular occasion. Absence of injury on the prosecutrix may not be a
factor that leads the court to absolve the accused.
This Court further held that there can be conviction on the sole
testimony of the prosecutrix and in case, the court is not satisfied with the
version of the prosecutrix, it can seek other evidence, direct or
circumstantial, by which it may get assurance of her testimony.
43
The Court held, it is well settled that a prosecutrix complaining of
having been a victim of the offence of rape is not an accomplice after the
crime. There is no rule of law that her testimony cannot be acted without
corroboration in material particulars.
In State of Karnataka v. Raju, the judgment rendered by a learned

Single Judge of the Karnataka High Court reducing the custodial sentence
of respondent to 3 years instead of seven years as was imposed by the
learned Second Additional Sessions Judge, Gulbarga, after convicting the
respondent for an offence punishable under section 376 of the Indian Penal
Code,1860, was challenged in appeal.
The victim was aged less than 12 years when she was sexually
ravished by the respondent on 31.1.1993 at about 12.30 p.m. On the basis
of First Information Report lodged at the police station, law was set into
motion. On completion of investigation, charge-sheet was filed and
accused faced trial but he pleaded innocence. Prosecution placed reliance
on the evidence of victim and the medical evidence. The trial court
convicted the accused under section 376 IPC. An appeal was preferred
before the High Court and the same was disposed of by the High Court
maintaining the conviction but sentence was reduced to 3 years, since the
High Court felt that in view of certain special reasons the custodial
sentence was to be reduced to 3 years.
It needs no emphasis that the physical scar may heal up, but the
mental scar will always remain. When a woman is ravished, what is
inflicted is not merely physical injury but the deep sense of some deathless
shame. An accused cannot cling to a fossil formula and insist on
corroborative evidence, even if taken as a whole, the case spoken to by the
victim strikes a judicial mind as probable. Judicial response to human

rights cannot be blunted by legal jugglery.
The present case is covered by section 376(2)(f) IPC i.e. when rape
is committed on a woman when she is under 12 years of age. Admittedly,
in the case at hand the victim was 10 years of age at the time of
commission of offence.
The measure of punishment in a case of rape cannot depend upon

the social status of the victim or the accused. It must depend upon the
conduct of the accused, the state and age of the sexually assaulted female
and the gravity of the criminal act. Crimes of violence upon women need
to be severely dealt with. The socio-economic status, religion, race, caste
or creed of the accused or the victim are irrelevant considerations in
sentencing policy. Protection of society and deterring the considering the
legal position and in the absence of any reason which could have been
treated as
special and adequate reasonreduction of sentence as done by
the High Court is clearly unsustainable. The High Court's order reducing
the sentence is set aside.
In Nazir Ahmed v. State of Jammu and Kashmir, the accused was

charged with committing rape on her divorced wife by allegedly cohabiting
with her for seven or eight years after executing a divorce deed. The fact
of execution of divorce deed was not communicated to her and it was only
when she filed an application for maintenance, he pleaded case of divorce.
He had executed a power of attorney in favour of her after execution of her
divorce deed where he had described her as his legally wedded wife and
empowered her to do all acts including execution of sale deeds etc.
45
The Jammu and Kashmir High court held that it could be said that
the divorce deed was just a paper writing which was never given any legal
effect. Cohabitation with the prosecutrix for seven or eight years
continuously as her husband would not amount to rape and he was entitled
to acquittal.
In State of Rajasthan v. Madan Singh , the accused raped a girl

below twelve years of age for which he was awarded sentence of less than
the minimum mandatory sentence. The Supreme Court held that the reason
that the accused was young and the only bread earner in his family was not
adequate and special reasons for imposing less than the minimum
punishment and so the order was liable to be set aside. The measure of
punishment in a rape case cannot depend upon the social status of the
victim or the accused. It must depend upon the conduct of the accused, age
of the victim and gravity of the crime.
Crimes of violence against women need to be dealt with severely.

The socio-economic status, religion, race, caste, or creed of the accused or
victim are irrelevant in sentencing policy. Protection of society and
deterring the criminal is the avowed object of the law and that is to be
achieved by imposing an appropriate sentence.
In Rajinder @ Raju v. State of H.P .,the prosecutrix, a young girl

about 18 years of age, was staying with her parents in village Kothi,
district Bilaspur, (H.P.). The accused, Rajinder@Raju, resident of village
Duhak, district Bilaspur, had taken contract for laying G.I. Pipeline near
the residence of the prosecutrix. In that connection, he used to store his
material in their house .On January 16, 1996, prosecutrix had some throat
pain. When the accused came to the house of the prosecutrix and came to
know that the prosecutrix has been suffering from throat pain, he
suggested to the mother of the prosecutrix that his cousin at Ghumarwin
was a doctor and if permitted, he could show the prosecutrix to his cousin
to which the mother of the prosecutrix agreed.
The accused took the prosecutrix on his scooter at about 3.00 P.M.
Instead of taking the prosecutrix to Ghumarwin, he took her to Jablu
stating that he had to collect the rent from his tenants. From Jablu, the
accused took prosecutrix to Berthin. The accused reached Berthin at about
8.00 - 8.30 P.M. alongwith the prosecutrix. At Berthin, the accused bought
some sweets and told the prosecutrix that he would take her to his house
as it was dark. The accused instead of taking her to his house, took the
scooter to some kachha road and made her to get down from the scooter.
After spreading his pattu on the ground and gagging the prosecutrix mouth
made her lie down; untied her salwar and committed the sexual intercourse
with her forcibly. The accused then left her leaving behind his pattu and
torch. After the accused had left, the prosecutrix saw some light from a
house down the road. She walked upto that house and told the lady, Smt.
Bimla Devi, residing there, of the incident. In the morning, the statement of
prosecutrix was recorded by one of the villagers viz., Roop Sing. The FIR
was then lodged. The Sessions Judge, Bilaspur on consideration of the
evidence on record, convicted the accused under sections 366 and 376
IPC. The accused was sentenced to rigorous imprisonment for seven years
and to pay a fine of Rs. 10,000/- with default stipulation for the graver
offence under section 376 IPC only.
The accused challenged his conviction and sentence before the High
Court of Himachal Pradesh. The learned Single Judge dismissed the appeal
47
preferred by the accused and affirm the judgement of the trial court
convicting the accused under sections 366 and 376 IPC.
In Tameezuddin v. State (N.C.T of Delhi),the Court held ,

It is true
that in a case of rape the evidence of the prosecutrix must be given
predominant consideration, but to hold that this evidence has to be
accepted even if the story is improbable and belies logic, would be doing
violence to the very principles which govern the appreciation of evidence
in a criminal matter.
Even in cases where there is some material to show that the victim
was habituated to sexual intercourse, no inference of the victim being a
woman of
easy virtuesor a women of
loose moral character can be
drawn.
Such a woman has a right to protect her dignity and cannot be

subjected to rape only for that reason. She has a right to refuse to submit
herself to sexual intercourse to anyone and everyone because she is not a
vulnerable object or prey for being sexually assaulted by anyone and
everyone. Merely because a woman is of easy virtue, her evidence cannot
be discarded on that ground alone rather it is to be cautiously appreciated.
In Jaswant Singh v. State of Punjab, on the night of 25th June, 1989,

the prosecutrix was sleeping in the courtyard of her house and her adoptive
parents were also sleeping in the same courtyard. The prosecutrix around
11p.m. got up to answer the call of nature and at that time all the three
appellants, namely, Kuldeep Singh, Major Singh and Jaswant Singh
barged into the courtyard and gaged her mouth all of a sudden making her
totally helpless and immovable. Kuldip Singh pointed a pistol at her and
then all the accused bodily lifted her to the house of Jaswant Singh.
She could not raise hue and cry as she was in panic. Major Singh
and Charan Singh has forcibly thrown the prosecutrix on a cot. Kuldip
Singh removed her clothes forcibly and committed sexual intercourse with
her against her will and consent, and thereafter the rest of the accused had
also committed rape on her. Thereafter the proscutrix was allowed to go.
She was threatened and warned not to disclose the occurrence to her
parents. On returning home, the prosecutrix narrated the occurrence to her
parents.
On the following day Surjit Kaur, mother of the prosecutrix

informed Gurdev Singh Sarpanch and Gajjan Singh Lambardar. She then
went to police station, Rajkot to inform the police about the incident but
the concerned police did not take any action against the accused.
Therefore a written complaint was filed on July 5, 1989 before Senior
Superintendent of Police Ludhiana which was in turn sent to Deputy
Superintendent of Police who visited the village on July 8, 1989 and
recorded the statement of the prosecutrix on the basis of which a formal
F.I.R. was issued on same day. The sentence of 10 years rigorous
imprisonment for rape and 5 years rigorous imprisonment for abduction
was held not liable to be reduced. The alleged dispute over a common wall
was not of such a grave nature as compelling the entire family of
prosecutrix to go to the extent of putting at stake its reputation and fair
name of a young girl to settle the scores with the accused. Therefore the
plea of false impliciation raised by the accused was held untenable.
49
In Abbas Ahmed Choudhary v. State of Assam, prosecutrix alleged
that she was abducted and raped by 3 accused persons. But only two of
the accused were apprehended by police along with prosecutrix.
Prosecutrix was consistant in attributing rape only to two apprehended
accused. As regards absconding accused though in Court statement she
had attributed rape to him also she had not done so in her statement under
Section 164 Criminal Procedure Code.
It was held that the absconding accused was therefore entitled to

acquittal. It was also made clear in this case that testimony of prosecutrix
is though entitled to primary consideration, the principle that prosecution
must prove the guilt beyond reasonable doubt still applies. There can be no
presumption that a prosecutrix would always tell the entire story truthfully.
In Narender Kumar v. State (N.C.T.of Delhi ),the appeal has been

preferred against the impugned judgment and order passed by the High
Court of Delhi by which it has affirmed the judgment and order of the trial
Court convicting the appellant under section 376 of Indian Penal Code,
1860 and awarded the punishment of rigorous imprisonment for a period
of 7 years and imposed a fine of Rs.2000/- .
Facts and circumstances giving rise to this case are that Smt. Indira
(prosecutrix) was going from village Khirki to Chirag, Delhi on that day at
about 8 p.m., the appellant met her near Ganda Nala, he caught hold of her
hand and dragged her towards the bushes on the edge of the road and
committed rape on her.
She could not raise the noise due to fear. After commission of the
offence, the appellant left her there and ran away. The prosecutrix went to
her husband at his working place and from there went to the police station
alongwith her husband to lodge the FIR. The prosecutrix was medically
examined. Appellant was arrested on statement of the prosecutrix as
recorded under section 164 of Code of Criminal Procedure, 1973.
After completion of investigation, charge sheet was filed against the

appellant under Section 376 IPC. The appellant, in addition to his own
statement under Section 313 Cr.P.C., also examined two witnesses in
defence. On conclusion of the trial, the learned Sessions Court vide
judgment and order dated 7/8.12.1999 convicted the appellant for the
offences under section 376 IPC and imposed the sentence as referred to
hereinabove.
The judicial handling of the various categories of rape is reflected in

the decisions rendered by the Courts from time to time. Though at times
broad policy guidelines are expressed by the Courts, the fact that there is
no standard policy uniformly adopted by all the Courts is evident from a
perusal of aforesaid cases. The judicial attitude has been over the period
more pragmatic but the inherent procedural formalities safeguard the
accused providing him with the benefit of doubt and as a result the trauma
and ordeal of the rape victim remain largely ignored.
51
CHAPTER -VI
It is ironical that when Indian mythology places women on a very high

pedestal and they are worshiped and honoured as Goddess of Learning
-Saraswati; of wealth -Laxmi; of power- Parvati, the Indian society adopts
double standards in so far as her guaranteed rights are concerned. There has
been over the decades alarming decline in moral values all around and the
contemporary world faces a great challenge, particularly in India. In the name
of progress and advancement, the people are losing out on moral values. It is
rather sad that while one keeps celebrating women right in all spheres, the
people exhibit no concern for her honour and her dignity. It is a sordid
reflection on the attitude of indifference of the society.
An attitude of men to treat women as a property, to be possessed to the

extent beneficial to them, has almost become a value in itself. Further, an
unchaste woman is treated as a symbol of sin, to be discarded from the
society irrespective of her involvement or innocence, or the hostile
circumstances that placed her in that situation. This newly highlighted, yet
age-old problem regarding a safe and secured life for women folk is worthy of
attention with an open mind. At one, there is doubt as to adequate security for
moral values in existing criminal law; at another, there is a fear as to the
development in the people of disrespect to these values.
Women, no less than men, require to be treated as

person, not
statistical abstraction.Notwithstanding the enactment of the laws relating to
dowry, rape, violence against women, the ground reality is rather distressing.
It appears that our society is becoming a psycho-sick society with an
uncivilized behaviour. Whenever crime is committed against women and that
too a violent crime, it sends shock waves to the society but those shock
waves burst like bubbles in a very short span. Moreover, it is also true that in
the male dominated society of India, in spite of heinous crime against women,
women victims are looked with a sense of hatred and stigma instead of hatred
against the rapists. Prejudice of the people towards rape needs serious
attention and the society must change its attitude.
The Indian Constitution advocates social justice, a poignant component

of which is gender justice. What is demanded is neither charity, nor grace, nor
as legal aid to a weaker sex. The militant claim is the woman's right to be
oneself, not a doll to please, nor an inmate of a workhouse. She has the
human right to be woman. The courts have taken greater recourse to the right
to life and personal liberty guaranteed by Article 21 of the Constitution for
mainstreaming women's right into the paradigm of human rights.
The concept of rape can be best understood by considering rape as a

crime of power and not of lust. Rape is not sexual act; it is the most blatant
form of violence perpetuated against women. In India, chastity arid virginity
are considered to be great assets of a woman and loss of chastity whether out
of choice or force, is a great handicap. On being raped, the woman is severely
criticised and condemned for loss of chastity. The raped woman faces not
only a personal sense of shame, but also is weighed down with guilt for no
fault of her. In a society like ours, where a woman's chastity is valued more
a 2
than her intellect, a woman who has been raped is ashamed and afraid to
identify the criminal.
Rape must be understood as the gravest kind of sexual violence against

women a crime of power, which is an extreme manifestation occurring in
the continuum of sexual violence. Rape stems from sexist values and beliefs
and it is not simply an issue affecting individual woman. It is a social and
political issue directly connected to power imbalances between men and
women in society.
The traditional concept of male and female sexuality, males being

sexually aggressive and females sexually passive, paves the way for the
assumption that rape is a natural fact, the occurrence of which cannot be
stopped. In patriarchal societies, the social training imparted to the
individuals, perpetuates the belief that domination is the inherent aspect of all
sexual activity and thus, emerges the close association between violence and
sexuality. In fact, violence and sexuality remain so intricately intertwined that
it becomes difficult to draw a line between normal heterosexual relations and
rape.
The rape victim not only undergoes a sequential pattern of emotional

reactions called rape trauma syndrome but is also ostracised from the
society. The rape victim undergoes varied reactions which may be immediate
or long term reactions, aimed at physical and mental integration, worldly
adjustment and personality adjustments. In patriarchal societies, virginity and
3
chastity are considered to be the great assets of a woman without which her
existence becomes meaningless.
The jurists and criminologists have identified the motivation for rape;
and on the basis classify the typology of rape and rapists, be it may blitz rape,
confidence rape ; or the criminal rapists, the mentally -ill rapist ,group
reformer, incompetent romeo, debt collector ; yet rape is considered to be a
transgression against chastity and the raped woman is severely criticised and
condemned for loss of chastity. For women, the awareness of the possibility
of rape determines their life in a very basic way curtailing the choices of
daily behaviour which are extremely threatening to the liberty of women.
Rape remains a vastly underreported crime due to the reactions of the

society and the existence of certain myths surrounding the concept. There is a
whole package of myths and lies which mask the real problem of rape and
diverts the attention of the society, so the key issues of rape remain obscure
and ambiguous and the responsibility of rape is attributed to the woman. Few
of the commonly held myths that only young and attractive women get
raped, men rape because of uncontrollable urges, women ask for it or women
cry rape reflect that it is the women's sexuality which is to be held
responsible for provoking or precipitating her rape and men are innocent
people who cannot control their sexual urges and commit rapes because the
female sexuality provides a provocation which they cannot resist.
The existence of these myths shield the fact that rape is a power crime
and the coercion of masculinity provides the basis for its occurrence. Rape is
a 4
a produce of sexist society it is the price, which a society based on

coercive sexuality must pay; where women are seen as objects for male
pleasures, as passive creatures needing and wanting to be dominated and
controlled. Thus, rape is the manifestation of institutional coercion that flows
from the structure of economic, social and political relations between men
and women generally.
Historically speaking, the hindu scriptures have seriously criticized the

unlawful coming together of a man and a woman for sexual enjoyment
brought about by force, deceit or sexual passion ; and have prescribed
severe punishment on the person guilty of the same ranging from the
confiscation of the property , extermination of genital organs, social
ostracization and even death sentence. The female is also not left scot free
and had had to undergo a penance for the same . The punishment for sexual
exploitation varies according to the caste, the protection and the marital status
of the male and female.
Even the muslim law, prescribes that a woman has to be respected and
protected under all circumstances, whether she belongs to your own nation or
to the nation of an enemy, whether she follows your religion or belongs to
some other religion or has no religion at all. A Muslim cannot outrage her
under any circumstances. All promiscuous relationships have been forbidden
to him, irrespective of the status or position of the woman, whether the
woman is a willing or an unwilling partner to the act. The words of the Holy
Quran in this respect are:
Do not approach (the bounds of) adultery
. Heavy
5
punishment has been prescribed for this crime, and the order has not been
qualified by any conditions. Since the violation of chastity of a woman is
forbidden in Islam, a Muslim who perpetrates this crime cannot escape
punishment.
Preservation of the dignity of the females has been a concern world

over and all the countries try to preserve the same by classifying the acts
likely to interfere with the dignity of the females, be it may the developed
country like England under the Sexual Offences Act 2003 , or the United
States Of America under the Federal Criminal Code of 1986;or the
developing country like India under Indian Penal Code of 1860.
In India, the consolidation of the criminal acts took place during British
regime when Thomas Macaulay drafted the Indian Penal Code and the same
included the provisions dealing with the offence of rape. It defines Rape to
be a sexual intercourse by a man with a woman against her will, without her
consent, or with her consent; when her consent has been obtained by putting
her or any other person in whom she is interested in fear of death or of hurt;
or with her consent, when the man knows that he is not her husband, and that
her consent is given because she believes that he is another man to whom she
is or believes herself to be lawfully married; or with her consent when, at the
time of giving such consent, by reason of unsoundness of mind or intoxication
or the administration by him personally or through another of any stupefying
or unwholesome substance, who is unable to understand the nature and
consequences of that to which she gives consent; or with or without her
consent, when she is under sixteen years of age. It also prescribes the
a 6
punishment to a convict with imprisonment of either description for a term

which shall not be less than seven years but which may be for life or for a
term which may extend to ten years and shall also be liable to fine; unless the
women raped is his own wife and is not under twelve years of age, in which
cases, he shall be punished with imprisonment of either description for a term
which may extend to two years or with fine or with both. The court may, for
adequate and special reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than seven years.
This legal definition of rape focuses only on vaginal - penile

penetration; while oral and rectal penetrations remained ignored and the
concept of digital rape (rape with objects) stands completely
unacknowledged. The criminal justice system adopts the attitudes of disbelief
and hostility and treats the victim with suspicion instead of sympathy. Raped
women are subjected to an institutionalized sexism that begins with their
treatment by the police, continues through a male dominated system
influenced by the notions of victims precipitation and ends with the
systematic acquittal of many defacto guilty rapists.
At every step in a rape trial, there are systemic obstacles and discriminatory
attitudes for the victim, which result in complete negation of her human
rights. When a victim reports the case to police, she sets in motion a complex
and lengthy process of legal system. It does little to help the woman to
recover from the ordeal of rape; and much to compound the initial trauma she
experienced at the hands of the offender. The victim has to prove that she was
7
raped. Her prior lifestyle and sexual conduct are laid before the Court; and
her consent or lack of it, is judged by her reputation. Her sexual character
determines the innocence or guilt of the accused.
Therefore, the courts assume greater importance in dealing with rape

and sexual violence cases in a more realistic manner. Sexual violence apart
from being a dehumanizing act is an unlawful intrusion of the right to privacy
and sanctity of a female. It is a serious blow to her supreme honour and
offends her self-esteem and dignity - it degrades and humiliates the victim;
and where the victim is a helpless innocent child, it leaves behind a traumatic
experience.
Justice Krishna Iyer decries the lopsided view of gender-justice. His

lordship pointed out that the fight is not for woman's status but for human
worth. The claim is not to end inequality of women but to restore universal
justice. The bid is not for loaves and fishes for the forsaken gender but for
cosmic harmony, which never comes till woman comes.
In recent years, the role of the judiciary has extended beyond issuing
directives on social issue concerns to ensuring effective and fair
implementation of the same. As a judge this requires elimination of subtle
ways in which the courtroom perpetuates discrimination and violation of
k women
s right to sexual integrity. A judge needs to proactive and must take
charge of its courtroom to ensure that the subtle play of discrimination
through spoken and unspoken words is eliminated.
a 8
The survey of judicial decisions shows that the courts in India have
been endeavouring to reconstitute the fundamental rights to life and liberty
guaranteed by Article 21 of the Constitution in the context of women
s
experiences and concerns. This has resulted in the meaningful expansion of
those rights. Fundamental rights have been engendered by mainstreaming
women's rights into them. The result is reached by a critical appraisal of the
existing laws and practices from a gender sensitive perspective. This does not
mean mere extension of the rights available to men and women but means a
reconstitution of those rights as to include the aspects of life and liberty,
which are specific to women within the fold of that right. The decisions in
rape and sexual harassment cases show that the court are alive to the need to
make changes in the institutional structures with a view to making women
s
rights effectively enforceable.
The Judiciary would do well to heed the words of Krishna Iyer, J., that
social justice is not constitutional clap trap but fighting faith which enlivens
the legislative text with militant meaning
; or the opinion of Chinnappa
Reddy, J., that
the discovery of new principles and the creative application
of old principles is the only way for the judiciary to keep pace with the vast
social change taking place outside the court and to contribute to these
changes.
If they did, there would be none of these decisions, which go clearly
against the very principle of equality and non-discrimination promised in the
court.
9
The judiciary has in some cases come out of their ivory tower and
attempted to interpret the existing law in a manner which brings about social
justice. Like the other branches, the judiciary has also realised that women
are no longer going to be satisfied by being treated as beneficiaries of welfare
doles but wish to be actively involved in the developmental process in the
country. Some of the observations of the Supreme Court reflect this
awareness of the change though regretfully not always has this consistently
been reflected in the decisions.
This does not mean that complete gender justice has been achieved.
Much more needs to be done. In fact, what has been achieved is little as
compared to what needs to be achieved. Whatever the law may or may not
provide, the efficiency of law depends upon how effectively it is enforced.
The judicial attitude is not uniformly favourable to gender equality. The cases
on rape continue to reflect male chauvinism of the lawyers, judges and police
officers.
The attitude of the Supreme Court towards rape victims does not always
appear to be impartial. The Supreme Court, in Prem Chand's case,reduced to
half the sentences imposed on two constable convicted of raping a woman at
a police post on the ground that rape victim was a woman of
easy virtue.
This type of reasoning is open to question from all sides. The victim's sexual
morals and past sexual experience has little to do with the heinous crime of
rape. A prostitute can be a victim of rape just as much as a virgin or
respectable married woman. And the rapist is no less guilty because the
woman he inflicts himself upon has had sexual experiences with other men.
a10
As long as the woman is not a conscious and willing partner, the act is, by
definition, rape. If the reasoning of the Supreme Court is accepted to be
correct, then logically, there should be no punishment for a culprit who rapes
a woman of easy virtue. In State of Maharashtra v. Madhukar Narayan
Mardikar, the court rightly upheld the self esteem of the woman of the easy
virtue and opined that she too has her right to privacy and nobody can violate
her privacy without her wishes.
Under the new law, Court can impose a punishment of less than 10
years after recording adequate and special reasons. The reasoning of the
Supreme Court that the rape victim was of
easy virtueis neither
adequate
nor
specialso as to justify the reduction of sentence by one half.
In rape cases the judicial decisions exhibit a paradoxical stance as

some judges have laid emphasis on technical rules of evidence, and others
have had their feet firmly imbedded in the Indian social setting and have been
sensitive to the inequalities and oppression faced by women. It is ripe in time
that the latter view must gain precedence over the former. In Sanya alias
SanyasiChallan Seth v. State of Orisss, the High Court held that there were
glaring inconsistencies in the prosecution case and the injuries sustained by
the victim could be self-inflicted.
The pragmatic instance of the judiciary can be exhibited from the case
of Delhi Domestic Working Women
s Forum v. Union of India, wherein the
court gave ample directions for the help of the victim of sexual assault, vis;
11
1. Complainants of sexual assaults should be provided with legal
representation. The victim's advocate should not only assist her in
filing the complaint but also guide her in getting other kinds of
assistance like psychiatric and medical,
2. Legal assistance would have to be provided at the police station as

well as in view of the distressed state of mind of the victim,
3. Police should be under a duty to inform the victim of the right to get
representation before asking her questions and the police report
should state that she was so informed,
4. A list of advocates should be prepared who were willing to act in

these cases,
5. Such advocates should be appointed by the Court, but to avoid delay

advocates might be authorized to act in police station before
permission from the court had been obtained,
6. A criminal injuries compensation board should be set up,
7. Compensation for the victim should be awarded by the court on the

conviction of the offender and by the criminal injuries compensation
board whether or not a conviction had taken place.
Furthermore, in State of Punjab v. Gurmit Singh, it was opined that the

courts must, while evaluating evidence, remain alive to the fact that in a case
a12
of rape, no self-respecting woman would come forward in court just to make

a humiliating statement against her honour such as was involved in the
commission of rape on her. In cases involving sexual molestation, supposed
considerations which had no material impact on the veracity of the
prosecution case or even discrepancy in the statement of the victim should
not, unless the discrepancies were such which were of fatal nature, be
allowed to throw out an otherwise reliable prosecution case. The inherent
bashfulness of the females and the tendency to conceal outrage of sexual
aggression were factors, which the court should not overlook. The testimony
of the victim in such cases was vital and unless there were compelling
reasons, which necessitated looking for corroboration of statement, the court
should find no difficulty to act on the testimony of victim of sexual assault
alone to convict an accused where her testimony inspired confidence and was
found reliable. Seeking corroboration of statement before relying upon the
same, as alone, in such cases amounted to adding insult to injury.
Though the Supreme Court has exhibited a dynamic attitude in ensuring

gender equality, judicial activism is yet to percolate to the lower levels of the
judicial system. It is hoped that the forward looking ideas reflected in the
decisions of the Supreme Court will percolate to the lower levels of the
judiciary and bar and that will ultimately expedite the social transformation
that the feminist ideology envisions. The researcher has on the basis of the
study concerning the area of research identified the grey areas which need to
be looked into to make the Indian society humane and conscious to the plight
of the females, such as;
13
1. Special Legislation
The Indian Penal Code was drafted in 1860, and is still holding the
ground to deal with the cases of sexual assault against the females including
rape. The substantive Law stands thoroughly complemented by the
procedural Laws, i.e; Criminal Procedure Code, 1973 and Indian Evidence
Act, 1872. Due interpretation to the legal provisions contained in theses
enactments has been provided by the Indian judiciary, yet despite of these
significant developments, the crime rate against women remain unabated. The
data put forth by national crime record bureau portrays the sordid state of
affairs. The statistical data from 1953 to 2010 reveals that this offence of rape
has increased tremendously i.e. 791%. Statistics given above reveals that the
offence of Rape is increasing at a very high rate .It is not enough to punish
rapists nor is to enough to treat (reform)the rapists.
Therefore, the increase in crime rate can be attributed to the

shortcomings of the legislations as one of the reasons warranting the adoption
of altogether a fresh piece of legislation especially dealing with the cases of
sexual assaults concerning females. Recently there has been an attempt in
India to frame out a special piece of legislation dealing with sexual assault in
the form of Criminal Law Amendment Bill 2012. This bill has been prepared
on the lines of Sexual Offences Act of 2003 of England. The most impressive
feature of this bill is, it gives protection not only to females but is gender
neutral.
a14
2. Classification of Rape
Two schools of thought are significantly predominant in the

classification of rape. One school considers rape as an sexual offence;
whereas the other consider it as a sexual assault. In recent times the school
which consider rape as sexual assault has gained predominance over the other
school. It believes that Rape is an act of aggression in which the victim is
denied her self-determination. It is an act of violence, which, if not actually
followed by beatings or murder is nevertheless always quite close to a life
threatening situation. It is an act of violation, which leaves woman in a state
of humiliation, degradation, fear and rage. Recent research findings contradict
the traditional view and establish that rape is an act of violence and
aggression, reflecting the assailant's feelings of inferiority and insecurity and
is far from being sexually motivated. At the most, rape can be considered as
the sexual expression of frustration and anger and the motivation to assert
power and authority. It is a vain delusion to perceive rape as the expression of
uncontrollable desire of sex rather it is a declaration of domination, whereby
the rapist loses control over his aggressive derives and not sexual passions.
This school of thought favours the rape as sexual assault approach, which
stresses the violent character of rape without denying its sexual overtones or
undercurrents. These feminists are convinced that rape is a power crime
directed against the female sexuality. They maintain that for the power rapist,
the choice of the genitals as the object of aggression is not accidental, but
15
essential because he is interested in inflicting a particular kind of damage on
the victim. It is imperative that the offence must be seen in terms of violence
than sexuality. As long as rape is perceived as an act of sexuality rather than
aggression and hostility, it will continue to be interpreted as predominantly
pleasurable to both parties rather than harmful to the victim. It is emphatically
pointed out that rape should be removed from the category of
sexual
offencesand reclassified as an assault for recognizing and respecting the
human rights of women.
3. Redefining Rape
Even in the absence of the above parameters of improvement, there is

urgent need to redefine rape so as to keep abreast with the methodology of
sexual assaults. Flavia Agnes has remarked that
in all criminal offences,
injury and hurt caused by using weapons is more grievous than the one
caused by the use of limbs but in case of rape, the injury caused by the use of
iron rods, bottles and sticks does not even amount to rape.The lacunae
inherent in the definition of rape make it impossible to recognize the concepts
like marital rape, digital rape, etc., thus rendering the definition a hollow
statement.
Jaspal Singh, J., of Delhi High Court, has rightly held in Smt.
SudeshJakhu
s case that intrusions of other objects in the vagina cannot be
I
brought to convict a rapist under section 376 of the IPC. The Learned. Judge
in this case very cogently remarked that the concept ofcrime undoubtedly
a16
keeps on changing with the change in political, economic and social set-up of
the country. The Constitution therefore, confers powers both on the Central
and State Legislatures to make laws in this regard. Such rights include power
to define a crime and provide for its punishment. Therefore let the legislature
intervene and go into the souls of the matter. Rape is a serious matter though,
unfortunately, it is not attracting serious discussions, not even in Law
Schools. The seriousness of the offence with respect to oral intercourse or
vaginal penetration otherwise than the male genitals is realized, though
involves an act or sadism which is likely to cause the victim for greater pain
and physical damage than rape itself.
Therefore the definition of rape should be changed in order to include

other forms of intrusions on the body of a woman or insertion of other objects
like fingers, or bottle, or stick, or any other insertable object in the vagina of a
woman instead of penile penetration in the course of carnal intercourse.
4. Age of consent
The age of consent as maintained by section 375 had come under great
criticism from various legal experts and feminists, as it is not in consonance
with the other prevailing laws. It remains difficult to find out the reason for
discrepancies among various laws regarding the age of consent. When a girl
is not considered fit for marriage when she is below 18 years of age; how can
she become fit for sexual intercourse otherwise with or without consent. On
one hand the Child Marriage Restraint Act, 1929 does not permit marriage of
a girl below 18 years of age and on the other hand, penal law of India does
17
not recognise forcible sexual intercourse with a wife between the age of
15-18 year.
The punishment provided under section 376(1) for marital rape of a

child wife between 12-15 years is also too lenient vis., two years or fine. It is
imperative to follow the pattern of Michigan Criminal Sexual Act that
eliminated consent as an element in the crime of rape, focusing on the
conduct of the offender, rather than the consent of the victim. From a proud
and passionate woman
s point of view, it is essential to conceptualize rape in
broader terms and include every sexual act in which female's positive desire is
absent. The positive desire should be determined by relative equality between
the parties and absence of coercion rather than consent.
5. Essential of corroboration
There is a serious debate over the issue of corroboration in

determination of rape cases amongst the member of the judiciary. The
traditionalists believe that corroboration is must to support the claims of the
rape victim whereas the radicals believe that the rape victim will not make
false accusations therefore, there is no need for corroboration.
In Rafiq v. State of U.P.,Krishna Iyer, J. referred to the requirement of

corroboration as the
sacred cows of criminal lawin Indo Angalian
jurisprudence, which are superstitious survivals and need to be re-examine
.
His lordship further observed that
we cannot cling to a fossil formula and
insist on corroborative testimony
.
a18
In another landmark judgment, BharwadaBhoginbhaiHirjibhai v. State of

Gujarat, the Supreme Court observed
In the Indian setting, refusal to act on the testimony of a victim of

sexual assault in the absence of corroboration as a rule, is adding insult to the
injury. Why should the evidence of the girl... be viewed with the aid of
spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do
so is to justify the charge of male chauvinism in a male dominated society.
In State of Punjab v. Gurmit Singh, the Supreme Court rightly

observed that Corroborative evidence is not an imperative component of
judicial credence in every case of rape.... a woman or a girl subjected to
sexual assault is not an accomplice to the crime, but is a victim of another
person
s lust; and it is improper and undesirable to test her evidence with a
certain amount of suspicion, treating her as if she were an accomplice.
Inferences have to be drawn from a given set of facts and circumstances with
realistic diversity and not dead uniformity test that type of rigidity in the
shape of rule of law is introduced through a new form of testimonial tyranny
making justice a casualty.
6. Political Sensitivity
All the suggested reformatory measures will not prove fruitful unless
the political institutions become sensitive to the plight of victims of sexual
assaults. The reports of the commissions must not fell to deaf ears, but must
receive a passionate consideration. In India, the Law Commission of India
19
had devoted four of its reports, namely, the 42nd, the 84th , the 156th and
172nd reports, to the Indian Penal Code. The 42nd and the 156th reports
concentrated on the overhauling of the Indian Penal Code, while the 84th and
172nd reports offered a set of comprehensive suggestions for reform in the
substantive law relating to rape. The central legislature, however, had
favourably responded to the 84th report (and to the reiterated
recommendations of the Law Commission in its 42 nd awaiting attention of the
legislature report) by amending, through the Criminal Law (Amendment) Act,
1983, substantive law relating to rape, but 172nd report is still awaiting a
positive response. Such a delay speaks of political apathy to the problem in
hand and must not happen in a democratic set up.
7. Victim caring investigation and Trial procedure:
As highlighted earlier that rape is not only a physical assault on the

victim but the most cruel violence perpetuated upon her having the potential
to destroy the physical, mental and social personality of victim. She needs
special care and support to manage the continuing trauma for the proper
cooperation to the investigating and prosecuting agencies.
The roughness of prevailing procedures many a time discourages the

victim in reporting the crime; and even if she musters the courage to report,
fails to maintain the same till the tardy process of trial resulting in the
undeserved acquittal of offenders. An Indian Supreme Court Judge while
strongly condemning the
fossil formulaeapplied to rape cases referred to
a20
the treatment of rape victims by the legal system as

the ravishment of
justice.
There is also unfortunate delay in disposal of cases in the Court of law. There
should be endeavour by the Courts to reduce the time taken for disposal of
cases in view of the trying and diagnosing situation that the victim and her
family members undergo during the trial stage.
The provisions of Evidence Act regarding relevancy of facts

notwithstanding, some defence counsel adopt the strategy of continual
questioning of the victim as to the details of rape. The victim is required to
repeat again and again the details of the rape incident not so much as to bring
out the facts on record or to test her credibility, but to test her story for
inconsistencies with a view to attempt to twist the interpretation of events
given by her so as to make them appear inconsistent with her allegations.
The courts should not sit as a silent spectator while the victim of crime
is being cross-examined by the defence. It must effectively control the
recording of the evidence in the court. While every latitude should be given to
the accused to test the veracity of the victim and the credibility of her version
through cross-examination, the court must also ensure that cross-examination
is not made a means of harassment or causing humiliation to the victim of
crime.
With the increased participation of women in the fields of policing,

lawyering and the judiciary as well, it would be desired if rape cases are
21
investigated and prosecuted by competent women police and prosecution
official who in turn will not only ensure effective prosecution of the offender
but also take care of the physical, mental, social and other needs of the
victim.
8. Training Programmes and Special Courts
(a) In order to rule out gender bias attitudes against rape victims, there should
be training programmes for members of Judiciary and the Bar to build
awareness regarding the women
s plight in rape cases. It will help in the
formation of attitudes conducive to the effective interpretation and
implementation of law.
(b) The victim of rape encounters police officers at the very first stage when
she decides to lodge a complaint. The police officers must be given
special training to deal with the victims of sexual abuse. Gender
sensitization programmes will help the officers to have the required
considerate approach for rape victims. Preferably there should be women
officers in every police station to attend to such females.
(c) The rape cases require a neutral and sympathetic judicial approach, which
is possible when suitably trained and equipped judges hear and decide the
cases. Setting up of special courts for hearing the cases of sexual assault
is strongly recommended. In these special courts, women judges should
be there so that the victim feels comfortable in narrating the details of the
sexual assault perpetrated on her.
a22
(d) In rape trials, the lack of appropriate evidence leads to the acquittal of the
accused. The low conviction rate in rape cases can be attributed to the
lack of coordination between the investigating officers and the public
prosecutors. Appropriate training programmes should be conducted for
the public prosecutors and the police officers who investigate rape cases,
so that through proper coordination between them helps in receiving
justice for the victim. Furthermore, the modern investigating technique
should be adopted in crime investigation which would be of great help in
determining the cases of sexual violence against women.
9. Judicial Sensitivity
The courts are expected to deal with cases of sexual crime against
women with utmost sensitivity. Such cases need to be dealt with sternly and
severely. A socially sensitized judge has better statutory armour in cases of
crime against women than long clauses of penal provisions, containing
complex exceptions and provisos. The judiciary can neither prevaricate nor
procrastinate. It must respond to the knock of the oppressed and the
downtrodden for justice by adopting certain operational principles within the
parameters of the Constitution and pass appropriate directions in order to
render full and effective relief. Judicial activism generally encompasses an
area of legislative vacuum in the field of human rights.
Thus, one of the most important tasks a judge is expected to perform is

to be responsive and responsible. He must be creative and may create
precedent, where no law exists for women but where it is actually needed.
23
Judicial decision can influence and under certain circumstances even compel
the government to enact the appropriate provisions to cover up the deficiency
in the existing law, as has been highlighted in the case of Vishakha v. State of
Rjasthan. The other important task is that the judge or judges must be
sufficiently sensitized to the problem. In recent years there is a welcome trend
and the court has tried to humanize the system to the women victims from the
battering given to them by the trial process.
Gender sensitive judges can take more proactive role in the

proceedings rather than simply responding to the material presented by the
lawyers. They can exercise their discretion to assist the process wherever
appropriate. They can recognize the need to obtain the best quality evidence
from witnesses particularly women in criminal trials who have been subjected
to violence and women litigants in civil cases. They can pay the particular
attention to the ways in which the evidence is recorded. In their appreciation
of evidence they can be aware of the gender context and can control
stereotyping.
The court dealing with rape cases should be sensitive towards the
conditions of rape victims and award punishments to rapists with great
seriousness towards women conditions in the Indian society. Punishment may
be made stringent in the case of separated wife
s rape and for the custodial
rapes as these kinds of rapes involve breach of trust of the person in custody.
Severe/more punishment for police culprits can be justified on the grounds of
responsibility of police towards the society, as their business is to keep their
shoes always on, rather than indulging in corrupt activities.
a24
Historically, it is apparent in India that there is a strong prejudice

against a person who commits rape. The doubt as to the protection of this
value under criminal law on rape is unwarranted, for the failure in protecting
the chastity of women is not the defect in criminal law but the inefficiency on
the part of the administrative and judicial machinery to effectively implement
the law and administration of justice.
10. Rape Crisis Centres
Rape Crisis Centres are set up in countries like Australia, Canada,

America, United Kingdom, etc. These centres provide their help through their
telephonic helplines also. These centres provide the rape victims with medical
help, counselling, and financial help by way of providing job opportunities
etc. The help of social workers and counsellors is provided to the rape victims
in order to help their recovery from the trauma and the subsequent practical
difficulties.
Such centres should be set up in India to provide for medical aid and
counseling to the rape victims. Another very important aspect is to provide
counseling for the family members of the victim. In times of distress and
emotional trauma, best support can be provided by the family members.
Sometimes, due to their biased reactions towards the rape victim, they may
not cooperate well with the victim. In such cases, counselling of the family
members will be a great help in the recovery of the victim.
25
11. Sentencing:
Only a fraction of all cases are reported, only a fraction of reported

cases are investigated and lead to trial in the courts and a very minute fraction
of accused are convicted and despite being a clear cut provision for imposing
minimum sentence in section 376, IPC, not only the trial courts but the High
Courts and in some cases even the Supreme Court has resorted to lower
sentence on those grounds which are tough to justify.
No doubt that the courts have the power to award lower sentence than
the prescribed one in the deserving cases to meet the ends of Justice. But
sometimes the courts abuse this power. However, indiscrimination use of
judicial discretion can be regulated by enacting a legal provision whereby the
award of lower sentence than the prescribed one will be effective only after
confirmation by the higher courts than the sentence awarding courts based on
cogent, judicially and justly appreciable grounds.
12. Compensation and Rehabilitation
Though section 357, CrPC, provides for victim compensation but in reality
the concept of the victim compensation has remained illusive. Barring a few
exceptions this provision has its inherent limitations like -
(i) Conviction of the accused in the case, and
(ii) His financial capacity and willingness to pay the fine.
a26
However, in some of the cases, the courts of our country treating rape
as a violation of fundamental rights of victim has awarded compensation in
certain cases but the same is not a rule but an exception in view of all the
cases taken together.
The need of the hour is the creation of state sponsored victim

compensatory fund particularly for heinous offences including rape. This
award should have a victim's need based procedure and should be totally free
from the end result of the prosecution that is conviction or acquittal and
should come into action the moment FIR is registered or cognizance is taken
of a complaint.
Since rape is a crime, which kills the victim not only in her own eyes,
but also ruins her familial and social life. Such victim needs affectionate and
sympathetic treatment and cares from the family, society and the governing
system not as a matter of grace but as matter of right enjoying corresponding
duty on these agencies as they fail to honour their commitment of providing a
safe and secure environment to the victimized girl or woman.
For restoring confidence and hope in victim, she needs proper care,
affection and duty bound help from all the agencies.
13. Media Sensitivity
In a democratic set up, one cannot underestimate the role of media

which acts as the fourth wing of the government and strengthens the
27
democratic working of the institutions. The media reflects the positive
attitudes as well as the negative attitudes. The positive role of the media
brought about a significant change in relation to custodial rape and led to the
reformation of law in the aftermath ofTukaram v. State of Maharashtra.
On account of the negative attitudes in glamorizing the rape trials, the

rape trials are held necessarily in camera. The media must be sensitive to the
plight of the rape victim and must not highlight the name or any inference
leading to the identification of the victim, as it will be counter productive. The
media must not highlight the case where the offender has been acquitted but
must invariably highlight those cases where the offender has been convicted,
as it will infuse the feeling of deterrence among the people
These areas need immediate attention by the legislators, by the

executives and by the judiciary. The due presentation and recognition of
human rights of a class of persons, who are not only systematically but also
institutionally exploited and constitutes one half of the population of our
country as well as mankind, is the immediate requirement of our society.
Studying the laws, the process, the application of those laws, one
thing is certain- the entire structure of justice needs an over haul,
otherwise the victim shall no longer be the woman, but humanity as a
whole.
a28
29
BIBLIOGRAPHY
BIBLIOGRAPHY
BIBLIOGRAPHY
STATUTES
Indian Statutes
The Code of Criminal Procedure, 1973.
The Constitution of India, 1950.
The Indian Evidence Act, 1872.
The Indian Penal Code, 1860.
Foreign Statutes
Australia
The Crimes Act, 1900 (New South Wales).
The Equal Opportunity Act, 1984 (Western Australia).
The Human Rights and Equal Opportunity Commission Act, 1986.
The Sex Discrimination Act, 1984.
Pakistan
Pakistan Penal Code, 1960.
The Offence of Zina (Enforcement of Hudood) Ordinance,

1979.
Sri Lanka
275
BIBLIOGRAPHY
Sri Lanka Penal Code, 1883.
United Kingdom
The Criminal Justice Act, 2003.
The Criminal Justice and Public Order Act, 1994.
The Employment Equality (Sexual Orientation) Regulations, 2003.
The Sexual Offences Act, 1956.
The Sexual Offences Act, 2003.
The Sexual Offences (Amendment) Act, 1976.
United States of America
Federal Criminal Code, 1986.
Federal Rules of Evidence, 2003.
Illinois's Criminal Sexual Conduct Statute, 1994.
Title VII of the Civil Rights Act, 1964.
Violence Against Women Act, 1994.
INTERNATIONAL INSTRUMENTS
UN Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, 1984.
276
BIBLIOGRAPHY
UN Convention on the Elimination of All Forms of Discrimination

Against Women, 1979.
UN Declaration on the Elimination of Violence Against Women, 1993.
UN Declaration on the Protection of Women and Children in

Emergency and Armed Conflict, 1974.
UN Convention on the Rights of the Child, 1989.
UN Declaration on the Right to Development, 1986.
International Covenant on Civil and Political Rights, 1966.
International Covenant on Economic, Social and Cultural Rights, 1966.
The Beijing Declaration, 1995.
The Vienna Declaration, 1993.
Universal Declaration of Human Rights, 1948.
REPORTS
Amnesty International Calls for Restriction of the Role of Male Guards in

Female Facilities, USA (New York State), August 2000. AI Index : AMR
51/124/00 at http://www.amnesty.org.
Amnesty International-India-Torture, Rape and Death in Custody,

Amnesty International Publications, New York (1992).
Breaking the Earthern Jars Lessons from South Asia to End Violence
Against Women and Girls, UNICEF Publication, Regional Office for
277
BIBLIOGRAPHY
South Asia, Nepal, (2000).
Compounding Injustice The Government's Failure to Redress Massacres

in Gujarat,(July, 2003), Human Rights Watch Report at
http://www.hrw.org/reports/2003/india0703/Gujarat-03.htm.
Crime in India, National Crime Records Bureau, Govt. of India, Ministry

of Home Affairs, (2000).
Crime or Custom? Violence Against Women in Pakistan, Human Rights

Watch Report (1999), at http://www.hrw.org/reports/1999/Pakistan.
Domestic and Sexual Violence Data Collection A Report Under the

Violence Against Women Act, A Joint Publication of the National
Institute of Justice and the Bureau of Justice Statistics, (July. 1996).
Domestic Violence and Law Report of Colloquium on Justice for

Women
Empowerment through Law, organized in Delhi in May, 2000.
Lawyers Collective Women's Rights Initiative, Butterworths, New Delhi,
(2000).
Draft Plant of Action for the Advancement of Women in Asia and the
Pacific, UN Economic and Social Council Second Asian and Pacific
Ministerial Conference on Women in Development, (1994). UN
Economic and Social Commission for Asia and Pacific Publication.
Final Report of UN Special Rapporteur Ms. Gay McDougall, on

Contemporary Forms of Slavery Systematic Rape, Sexual Slavery and
Slavery like Practice During Armed Conflicts(22 June, 1998)., (1980).
278
BIBLIOGRAPHY
Law Commission of India 154th Report on The Code of Criminal

Procedure, 1973, Ministry"Friends" Raping Friends Could It Happen
to You? Project Report by Jean O'Gorman Hyghes and Bernice R.
Sandler, on the Status and Education of Women, Association of
American Colleges, (1987).
Human Development Report 2002 Deepening Democracy In a

Fragmented World, Published for UNDP. Delhi by Oxford University
Press, New Delhi. (2002).
Law and Sexuality: Speech on the Amendments to the Penal Code,

Parliamentary Speeches (Sri Lanka), (19th September,1995), at
http://www.icescolombo.orelNeelan/ ps190995.htm.
Law Commission of India 42nd Report, Govt. of India, Ministry of

Law, (1971).
Law Commission of India 84th Report, Govt. of India. Ministry of

Law, Justice and Company Affairs of Law and Justice, Govt. of India,
(1996).
Law Commission of India 156th Report on the Indian Penal Code,

1860, Ministry of Law and Justice. Govt. of India, (1996).
Law Commission of India 172nd Report on Review of Rape Laws,

Ministry of Law and Justice, Govt. of India (2000).
Lives Together, Worlds Apart Men and Women in a Time of Change

The State of World Population, UNFPA, United Nations Population
279
BIBLIOGRAPHY
Fund, (2000).
Lok Sabha Debates, 7th Series. Vol.42, (1983). Lok Sabha Secretariat.
New Delhi.
Memorandum on Reform of Laws Relating to Sexual Offences, Prepared

by Shomana Khanna and Ratna Kapur Centre for Feminist Legal
Research, (1996).
Nairobi Forward Looking Strategies for the Advancement of Women

Report of the World Conference to Review and Appraise the
Achievements of the United Nations Decade for Women : Equality,
Development and Peace, Nairobi, (15-26 July, 1985).
NGO Shadow Report to CEDAW South Africa Focus : Violence

Against Women, Masimanyane CEDAW Working Group, (June, 1998).
Parliamentary Speeches Law and Sexuality : Speech on the

Amendment to the Penal Code, (September, 1995) at
http://www.Icescolombo.org/Neelan/ps190995. htm.
Platform for Action Report of the Fourth World Conference on

Women, Beijing, China, (4-15 September, 1995).
Preliminary Report submitted by UN Special Rapporteur on Violence

Against Women, Its Causes and Consequences, Ms. Radhika
Coomaraswamy, (22 November, 1994).
Programme of Action Report of the World Conference on Human

Rights, Vienna, (14-25 June, 1993).
280
BIBLIOGRAPHY
Rape A Legal Study, National Commission For Women, (2000).
Report of the Age of Consent Committee, Govt. of India, Central

Publication Branch, Calcutta, (1928-29).
Report of the Seminar on Child Rape, National Commission for Women,

(Oct. 7_8, 1992).
Report of the UN Special Rapporteur on Violence Against Women, Its

Causes and Consequences, Ms. ILdhika Coomaraswamy, on Violence in
the Community, (12 February, 1997).

Causes and Consequences, Ms. Radhika Coomaraswamy, on
Trafficking in Women, Women's Migration and Violence Against
Women, (29 February, 2000).

Causes and Consequences, Ms. Radhika Coomaraswamy, Addendum
Mission to Bangladesh, Nepal and Indian on the Issue of Trafficking of
Women and Girls, (6th February, 2001).

Causes and Consequences, Ms. Radhika Coomaraswamy, on Integration
of the Human Rights of Women and the Gender Perspective Cultural
Practices in the Family that are Violent Towards women, (31 January,
2002).
Report of the UN Economic and Social Council on Integration of the
281
BIBLIOGRAPHY
Human Rights of Women and the Gender Perspective Violence

Against Women, (6th January, 2003).
The Criminal Law (Amendment) Bill 1980 Report of the Joint

Committee, Govt. of India, Rajya Sabha Secretariat, (1982).
The Human Right Watch Global Report on Women's Human Rights,

Human Rights Watch Women's Rights Project, (1998), Oxford
University Press, Calcutta, Chennai and Mumbai.
The Indian Penal Code (Amendment) Bill 1972 Report of Joint

Committee, Govt. of India, Rajya Sabha Secretariat, (1976).
The Progress of Nations, (1997), UNICEF, New York.
The RAHI Findings : Voices From the Silent Zone Women's

Experiences of Incest and Childhood Abuse. Published by RAHI, New
Delhi, (1998).
The State of World Population The Right to Choose : Reproductive

Rights and Reproductive Health, UNFPA, United Nations Population
Fund, (1997).
Towards Equality The Unfinished Agenda Status of Women in

India 2001, by Sarla Gopalan. The National Commission for Women,
Government of India, (2002).
UNIFEM in Beijing and Beyond Celebrating the 4th Conference on

Women, UNIFEM Report (1996). UN Development Fund for Women.
282
BIBLIOGRAPHY
Violence Against Women A Hidden Form of Human Rights Abuse,

Amnesty International News Service. AI Index : ACT 77/003/2002, (8th
March 2002) at http://www.amnesty.org.
Violence Against Women A Study of Delhi, Mumbai and Bangalore,

by Vinita Nagar (Aug., 1999). Centre for Policy Research, New Delhi.
Violence Against Women Addressing a Global Program, Ford

Foundation Women's Program Forum, (1992). Ford Foundation, New
York.
Violence Against Women, Congressional Caucus for Women's Issues,

Washington D.C., (October, 1992).
Violence Against Women The Response to Rape Detours on the Road

to Equal Justice, Prepared by the Majority Staff of the Senate Judiciary
Committee, (May, 1993).
Women 2000 Sexual Violence and Armed Conflict : United Nations

Response, Published to promote the goals of the Beijing Declaration and
the Platform for Action by the Division for the Advancement of Women
Development of Economic and Social Affairs, United Nations, (April,
1998).
Women and Peace Equality, Participation and Against Women, Kit

No.5, issued by UN Office, Vienna (1990).
Women in the Front Line Human Rights Violations Against Women,

Amnesty International Report, (1990).
283
BIBLIOGRAPHY
Women, Violence and Human Rights, Women's Leadership Institute

Report, (1992).
BOOKS
Lalita Dhar, et al
Sexual Harassment at Work Place ; old Beginning
New Thinking
, in Indian Socio- Legal Journal. Vol. XXX, Jabalpur
(January, 2006 )
Adler, Zsuzsanna, Rape on Trial, Routledge and Kegal Paul, London

(1987).
Aggarwal Nomita, Women and Law in India,Women's Studies and

Development Centre, University of Delhi. New Century Publications,
Delhi(2002)
Agnes, Flavia, Journey to Justice Procedure to be followed in a Rape

Case, Majlis, Bombay(1990)
Ahmad, Ejaj, Law of Crimes, revised by Dr. Gurbux Singh, 5th ed.,
Rajasthan Law House, Jodhpur, Ahmedabad(2000)
Ahuja, Ram, Violence Against Women, Rawat Publications, Jaipur,

Delhi(1998)..
Basu, N.D. Indian Penal Code, ed. by Sudhir Kumar Bose, 6th ed.,
Published by P.S. Basu, Nalin Sarkar Street, Calcutta(1966)
Basu Penal Code Law of Crimes, ed. by A.N. Saha, 8th ed., Ashoka
Law House, Delhi(2001)
Bridgeman, Jo and Susan Millns, Feminist Perspectives on Law, Sweet

284
BIBLIOGRAPHY
and Maxwell, London(1998)
Brownmiller, Susan, Against Our Will-Men, Women and Rape,Bantam

Books, New York(1990)
Clark, Lorenne and Debra Lewis. Rape The Price of Coercive

Sexuality, The Women's Press, Toronto, Canada(1977)
Desai, Neera and Maithreyi Krishna Raj, Women and Society in India,
Ajanta Publications, Delhi(1987)
Dewan V.K., Law Relating to Offences Against Women, 2nd ed.,

Orient Law House, New Delhi(2000)
Dhagmwar, Vasudha, Law Power and Justice, 2nd ed., Sage

Publications, Delhi(1987)
Feminism and the Power of Law, ed. by Coral Smart, Routeledge,

London and New York(1989)
Feminist Terrains in Legal Domains Interdisciplinary Essays on

Women and Law in India, ed. by Ratna Kapur, ( Kali For Women,
New Delhi(1996)
Freedom From Violence Women's Struggles From Around the World,

ed. by Margaret Schuller, (1992).
Gender and Justice, ed. by Ngaire Naffine, Dartmouth Publishing

Company, Ashgate Publishing Ltd., England(2002)
Ghose, S.K., Torture and Rape in Police Custody, Ashish Publishing
285
BIBLIOGRAPHY
House, New Delhi(1993)
Gonsalves, Lina, Women and Human Rights, . A.P.H. Publishing

Corporation, New Delhi(2001)
Gordon, Peter and Kate Crehan, Dying of Sadness: Gender, Sexual

Violence and the HIC Epidemic, SEPED Conference Paper Series, no.-
1, UNDP/SEPES Publication.
Gour H.S., The Penal Law of India, revised by M.C. Desai, D.D. Seth
and R.B. Sethi. 9th ed., Law Publishers, Allahabad(1972)
Gour. K.D.. A Test Book on the Indian Penal Code, Oxford and IBH
Publishing Co. Pvt. Ltd., New Delhi(1992)
Guberman, Connie and Margie Wolfe, No Safe Place Violence

Against Women and Children, The Women's Press, Toronto.
Canada(1985)
Human Rights Issues and Perspectives ed. by J.L. Kaul Regency

Publications, Delhi(1995)
Jaggor, Alison M., Feminist Politics and Human Nature, Rowland,

Sussex(1983)
Jain, Shashi Prabha and Mamta Singh, Violence Against Women,

Radha Publications, Delhi(2001)
Jaswal, Dr. Paramjit S. and Dr. Nishtha Jaswal, Human Rights and the
Law, Efficient Offset Printers, Delhi(1996)
286
BIBLIOGRAPHY
Kannabiran, Kalpana and Vasanth Kanna biran, De Eroticizing

Assault Essays on Modesty, Honour and Power, Mandira Sen for
STREE, Calcutta(2002)
Kapur, Ratna and Brend Cossman, Subversive Sites Feminist

Engagements With Law in India, Sage Publications, Thousand Oaks,
California, London, New Delhi(1996)
Manohar, V.R. and W.W. Chitaley, The Indian Penal Code, 3rd ed.,
The All India Reporter Ltd., Nagpur(1980)
Mayne's Criminal Law of India, revised and ed. by S.Swaminadhan,

4th ed., Higginbothams Ld., Madras(1914)
Monir, M., Law of Evidence, revised by H.S. Ursekar, 6th ed., The
University Book Agency, Allahabad(2002)
Nelson, Reginald A., The Indian Penal Code, ed. by S.S.Sastry and
S.D.Singh, 6th ed., Law Book Company, Allahabad(1970)
P.S.A. Pillai's Criminal Law, ed. by V. Suresh and D. Nagasaila, 9th

ed., Butterworths India, New Delhi(2000)
Paton, George Whitecross, A Text Book of Jurisprudence, ed. by G.W.

Paton and David P. Derham, (1972). Oxford University Press,
London(1972)
R.V. Kelkar's Criminal Procedure, revised by Dr. K.N.

Chandrasekharan Pillai. 4th ed., Eastern Book Company,
Lucknow(2002)
287
BIBLIOGRAPHY
Raj Gopal, P.R., Social Change and Violence The Indian

Experience, Uppal Publishing House, New Delhi(1987)
Raju, V.B., Commentaries on the Indian Penal Code, 3rd ed., Eastern
Book Company, Delhi(1966)
Ranchhodas, Ratan Lal and Dhiraj Lal Keshavi Lal Thakore, The Code
of Criminal Procedure, 14th ed., Wadhwa and Company Law
Publishers, Nagpur(1992)
Ranchhodas, Ratan Lal and Dhiraj Lal Keshavi Lal Thakore, The Law
of Crimes, revised by D.A. Dasai, M.L. Jain and N.R. Madhava
Menon, (1993). Bharat Law House Pvt. Ltd., New Delhi.
Ratan Lal and Dhiraj Lal's Law of Crimes A Commentary on The

Indian Penal Code, 1860, revised by Justice C.K. Thakker, 25th ed.,
Bharat Law House, New Delhi(2003)
Researching Sexual Violence Against Women Methodological and

Personal Prospectives, ed. by Martin D. Schwartz. Sage Publications,
Delhi(1997)
Rhode, Deborah L., Justice and Gender, Harvard University Press,

Cambridge, Massachussets, London, England(1989)
Russell, E.H., Rape in Marriage, Indiana University Press, Blooming

ton and Indianapolis)(1990)
Sachs, Albie and Joan Hoff Wilson, Sexism and the Law A Study of
Male Beliefs and Judicial Bias in Britain and the United States, (Law
288
BIBLIOGRAPHY
and Society Series), Martin Robertson and Company Limited, Oxford,

Great Britain(1978)
Salmond on Jurisprudence, ed. by P.J. Fitzgerald, 12th ed., N.M.

Tripathi Private Limited, Bombay(1999)
Sarkar on Evidence, ed. by Sudipto Sarkar and V.R. Manohar, 14th ed.
, Wadhwa and Company Law Publishers, Nagpur(1993)
Schwartz, Martin D. and Walter S. Keseredy, Sexual Assault on the

College Campus The Role of Male Peer Support, Sage Publications,
California(1997)
Sexana, Shobha, Crimes Against Women and Protective Laws, Deep

and Deep Publications, New Delhi(1995)
Sexual Violence The Reality Form Women, The London Rape

Crisis Centre Hanbook Series, The Women's Press, London (1984).
Sharma, K.M., Law Relating to Rape, Sodomy, Abduction and

Kidnapping, Kamal Publishers, Delhi (1996).
Singh, Kirti, Law, Violence and Women in India, Study Sponsored by

UNIFEM/UNICEF, (2000). UNIFEM/UNICEF Publication, New
Delhi.
Smart. Carol, Feminism and the Power of Law, ed. by Carol Smart,
Routledge, London and New York(1989)
Smart, Carol, Women Crime and Criminology : A Feminist Critique,
289
BIBLIOGRAPHY
Routledge and Kegan Paul. London, Boston, Melbourne and

Henley(1984)
Smith, J.C. and Brian Hogan, Criminal Law, 5th ed., Butterworth &
Co. (Publishers) Ltd.. London (1984).
The A.I.R. Manual Unrepealed Central Acts, by V.R. Manohar and

W.W. Chitaley, 5th ed., vol-24, All India Reporter Pvt. Ltd.,
Nagpur(1989)
The A.I.R. Manual Unrepealed Central Acts, by V.R. Manohar and

W.W. Chitaley. 5th ed., vol-38, All India Reporter Pvt. Ltd.,
Nagpur(1989)
The Criminal Justice System and Women Offenders, Victims,

Workers, ed. and compiled by Barbara Raffel Price and Natalie J.
Sokoloff, (1982). Clark Boardman Company, Ltd., New York.
The Dark Side of Families Current Family Violence Research, ed. by

David Finkelhor, Richard J. Gelles, Gerald T. Hotaling and Murray A.
Straus, (1983). Sage Publications, Beverley Hills, London, New Delhi.
The World of Gender Justice, ed. by Murlidhar C. Bhandare, (1999).

Har Anand Publications Pvt. Ltd., New Delhi.
Tomasevski, Katarina, Women and Human Rights, Women and World

Development Series, (1993). Zed Books, London and New Jersey.
Tong, Rosemarie, Feminist Thought A Comprehensive Introduction,

(1989). Westview Press, Boulder and San Francisco.
290
BIBLIOGRAPHY
Tong, Rosemarie, Women, Sex and the Law, (1994). Rowman and
Allanheld Publishers, USA.
Vandana, Sexual Violence Against Women: Penal Law and Human

Rights Perspective, Lexisnexis, Butterworths,Wadhwa Nagpur,(2009)
Veeraraghvan, Vimal, Rape and Victims of Rape, (1987). Northern

Book Centre, Delhi.
Verma, R.S. and I.B.S. Thokchom, Commentary on Rape, Kidnapping

and Abduction, (2001). Verma Publications, Delhi.
Violence Against Women, ed. by Carolyn M. Sampselle, (1992)

Hemispher Publishing Corporation New York, Washington,
Philadelphia, London.
Violence Against Women Women Against Violence, ed. by Shirin

Kudchedkar and Sabiha Al-Issa, (1998). D.K. Fine Arts Press (P) Ltd.,
Delhi.
Ward, Colleen A., Attitudes Toward Rape Feminist and Social

Psychological Perspectives, Series editor : Sue Wilkin Son, (1995).
Sage Publications.
Watson, Eric R., The Principles of Indian Criminal Law, (1907), Sweet
and Maxwell Ltd., London.
Williams, Glanville, Text Book of Criminal Law, (1978). Stevens &

Sons, London.
291
BIBLIOGRAPHY
Women and the Politics of Violence, ed. by Taisha Abraham, (2002).

Shakti's Books, Har-Anand Publications Pvt. Ltd., New Delhi.
Women and Violence: Realities and Responses Worldwide, ed. by

Miranda Davies, (1994). Zed Books Ltd., London and New Jersey.
Women's Encounters with Violence Australian Experience, ed. by

Sandy Cook and Judith Bessant, (Sage Series on Violence Against
Women, 1997). Sage Publications, London, New Delhi.
Women's Health: Readings on Social, Economic and Political Issues,

ed. by Nancy Worcester and Mariamme H. Whatley, (Women's Studies
Program, University of Wisconsin Madison), 2nd ed. (1994).
Kendall/Hunt Publishing, Iowa.
Women, Law and Social Change Core Readings and Current Issues,
ed. by T. Brettel Dawson, Carleton Legal Studies Series (1990).
Captus Press, Canada.
Women March Towards Dignity Socio Legal Perspectives, ed. by

Kusum, (1993), Regency Publications.
Women, Violence and Male Power, ed. by Marianne Hesters, Liz

Kelly and Jill Radford, (1996). Open University Press, Buckingham,
Philadelphia.
ARTICLES
292
BIBLIOGRAPHY
Abraham, Ammu, "Violence Against Women" in National Workshop

on Atrocities Against Women and Family Violence, (Dec., 1987).
Agnes, Flavia, "A Critical Review of Enactments of Violence During

the Decade" in Women and Violence A Country Report, ed. by
Maithreyi Krishna Raj, 91 (1991). Centre for Women's Studies,
Bombay.
Agnes, Flavia, "Fighting Rape Has Amending the Law Helped" 5 The
Lawyer's Collective, 4 (1990).
Agnes, Flavia, "Protecting Women Against Violence" 27 EPW ws-19

(1992).
Agnes, Flavia, "The Anti Rape Campaign The Struggle and the
Setback" in The Struggle Against Violence, ed. by Chhaya Datar, 99
(1993). The Indian Press Pvt. Ltd., Calcutta.
AIDS I Care... Do you? Men Make a Difference, A Folder released

on World's AIDS Day, 1 December 2001, by World Health
Organisation, SEARO, New Delhi.
Akbar, Mallika, "Abuse : A Vicious Circle", The Times of India,

(19.11.95).
Aolain. Fionnula Ni, "Radical Rules : The Effects of Evidential and

Procedural Rules on the Regulation of Sexual Violence in War", 60
Albany Law Review, 883.
Arati Rao, "Right in the Home Feminist Theoretical Perspectives on

293
BIBLIOGRAPHY
International Human Rights" in Feminist Terrains in LegalDomains,

100 (1996). Sage Publications, Delhi.
Atkinson, Roslyn, "Women And Justice Is There Justice For

Women" (2003) QUTLJJ5.
Background Paper Personal Autonomy and the Criminal Law :

Emerging Issues for Women by Elizabeth A. Sheehy, Canadian
Advisory Council on the Status of Women, (Sep., 1987.
Bagihole, Barbara and Hazel Woodward, "An Occupational Hazard

Warning : Academic Life Can Seriously Damage Your Health. An
Investigation of Sexual Harassment of Women Academics In a U.K.
University", British Journal of Sociology of Education, Vol. 16, no.-1,
(1995).
Bajpai, Asha, "Women's Rights At the Workplace (Part-I), "The

Lawyers Collective", vol.-12, no.-10, 17 (1997).
Bajpai, Asha, "Women's Rights at the Workplace (Part-II), "The

Lawyers Collective", vol.-12, no.-11, 13 (1997).
Bargaric, Mirko and Kumar Amara Sekara, "The Errors of

Retributivism", [2000] MULR 5.
Baxi, Upendra, Lotika Sarkar, Raghu Nath Kelkar, "A Memorandum

Concerning the Law of Rape" (1st May, 1980), (memo).
Baxi, Upendra, Lotika Sarkar, Raghu Nath Kelkar, Vasudha,

Dhagamwar, "Open Letter to the Chief Justice" (1979) 4 SCC 1.
294
BIBLIOGRAPHY
Becker, Judith V. and Gene G. Abel, "Men and the Victimization of

Women" in The Victimization of Women, ed. by Jane Roberts
Chapman and Margaret Gates, 8th printing, 29 (1985), Sage
Publications, California.
Bohman, James, "Punishment As a Political Obligation : Crimes

Against Humanity and the Enforceable Right to Membership" in
Buffalo University Law Review, vol.5, 551(2002).
Brown, A. Widney, "WHO Background Paper Obstacles to Women

Accessing Forensic Medical Exams In Cases of Sexual Violence",
Women's Rights Division, Human Rights Watch, at
http://www.hrw.org.
"Bryant Case Tests Limits of Rape Shield Law" at

http://www.csmonitor.com/ 2003/1022/po2so2.usju.html.
Bunch, Charlotte, Roxanna Carrillo and Rima Shore, "Violence

Against Women" in Women in the Third World An Encyclopedia of
Contemporary Issues, ed. by Nelly P. Stormquist, 59 (1998). Garland
Publishing, Inc., New York and London.
Burotto, Ximena Bunster, "Rape and Torture in War" in Women and

Violence Realities and Responses Worldwide, 156 (1994). Zed Books
Ltd., London and New Jersey.
Butler, Sandra, "Incest : Whose Reality, Whose Theory?", in The

Criminal Justice System and Women Offenders victims, workers,
ed. and complied by Barbara Raffel Price and Natalie J. Sokoloff, 323
295
BIBLIOGRAPHY
(1982). Clark Broadman Company Ltd., New York.
Carrell, Brian, "Do Rape Shield Laws Forbid Questions About False
Allegations" at http://www.equitvfeminism.com/articles.
Carrington, Kerry, "Governing Sexual Violence : Criminalisation and

Citizenship" in Women's Encounters With Violence Australian
Experiences, ed. by Sandy Cook and Judith Bessant, 219 (1997). Sage
Series on Violence Against Women, Sage Publications, California.
Case Comment "Rape : Challenging the Pedstals of Patriarchy" I

National Law School Journal, 164 (1993).
Chinkin, Christine, "Feminist Interventions Into International Law", 19

Adelaide Law Review 13.
Crocker, Phyllis L., "An Analysis of University Definitions of Sexual

Harassment" in Reconstructing the Academy Women's Education and
Women's Studies, ed. by Elizabeth Minnich, Jean 0' Barr and Rachael
Rosenfeld, 24 (1988). The University of Chicago Press, Chicago and
London.
Curtis, David G., "Perspectives on Acquaintance Rape", The American

Academy of Experts in Traumatic Stress, Inc.
"Custodial Rape Cover Up" 29 EPW 1622 (1994).
Dawson. T. Brettel, "Sexual Assault Law and Past Sexual Conduct of

the Primary Witness : The Construction of Relevance" in Women, Law
and Social Change Core Readings and Current Issues, ed. by T.
296
BIBLIOGRAPHY
Brettel Dawson, Carleton University, Carleton Legal Studies Series, 62

(1990). Captus Press, Canada.
Duff, Antony, "Legal Punishment", The Standford Encyclopedia of

Philosophy, ed. by Edward N. Zalta, [Spring ed., (2004)] at
http://plato.standford.edu/ archives/spr2004/entries/legal-punishment.
Fact Sheet : Combating Sexual Abuse in the Netherlands, (December,

1996) at http://www.minjust.n1:8080/a-beleid/fact/cfact2.htm.
Finkelhor, David and Kersti Yllo, "Rape in Marriage A Sociological

View" in The Dark Side of Families Current Family Violence
Research, ed. by David Finkelhor, Richard J. Gelles, Gerald T.
Hotaling and Murray A. Straus, 119 (1983). Sage Publications,
Beverley Hills, London, New Delhi.
Frazier, Patricia A. and Lisa M. Seales, "Acquaintance Rape is Real

Rape" in Researching Sexual Violence Against Women
Methodological and Personal Perspectives, Violence Against Women
Methodological and Personal Perspectives, ed. by Martin D.
Schwartz, 54 (1997). Sage Publications, California.
"Ending Violence Against Women Population Reports", Issues in

World Health, vol.27, no.4, series L, no.11, (August 2000). Center
for Health and Gender Equity, Maryland, USA.
Ending Violence Against Women Population Reports, Vol. XXII,

no.4.
297
BIBLIOGRAPHY
Evan Laura J., "Sexual Harassment : Women's Hidden Occupational

Hazard" in The Victimization of Women, ed. by Jane Roberts
Chapman and Margaret Gates, 8th printing, 203 (1985). Sage
Feld, Louise, Comment : Along the Spectrum of Women's Rights

Advocacy : A Cross Cultural Comparison of Sexual Harassment Law
in the United States and India, 25 Fordham International Law Journal,
1205.
Foley, Marian, "Who is in Control? : Changing Responses to Women

Who Have Been Raped and Sexually Abused" in Women, Violence
and Male Power, ed. by Marianne Hester, Liz Kelly and Jill Radford,
166 (1996). Open University Press, Buckingham, Philadelphia.
Funabashi, Kuniko, "Violence Against Women and Women's

Movements in Japan", paper 65 in Conference on Women's Studies in
Asia 2000 (Ehwa). Sponsored by the United Board for Christian
Higher Education in Asia and the Japan Foundation, Asia.
Fyre, Marilyn, "From The Politics of Reality" in Key Concepts in

Critical Theory GENDER, ed. by Carol. C. Gould, 91 (1997).
Humanities Press, New Jersey.
Gallahan, Linda B., "Research and Conceptual Approaches to the

Understanding of Gender" in Issues in the Psychology of Women, ed.
by Maryka Biaggio and Michel Hersen, 33 (2000). Kluwer
Academic/Plenum Publishers, New York, Boston, Dordrecht, London,
298
BIBLIOGRAPHY
Mosco
Ganguly, Arati, "Rape and Social Stigma" paper Presented at the

National Conference on a Perspective for a Women's Liberation
Movement in India (Nov., 1990).
Goti, Jaime Malamud, "Equality, Punishment and Self-Respect",

Buffalo Criminal Law Review, vol.5, 497(2002).
Griffin, Susan, "Rape : The Ail American Crime" in The Criminal

Justice System and Woman Offenders, Victims, Workers, ed. and
compiled by Barbara Raffel Price and Natalie J. Sokoloff, 223 (1982).
Clark Broadman Company Ltd., New York.
Gupta, Srinivas, "Rape Law Fails the Women" 4 CILQ 137 (1991).
Haeri, Shahla, "The Politics of Dishonor : Rape and Power in Pakistan"

in Faith and Freedom Women's Human Rights in the Muslim World,
ed. by Mahnaz Afkbami, 161 (1995). I.B. Tauris Publishers, London,
New York.
Harris, Angela P., "Gender, Violence, Race and Criminal Justice,

Stanford Law Review, Vol. 52, no.-4, (April, 2000).
Hearn, Marcellene Elizabeth, "A Thirteenth Amendment Defense of the

Violence Against Women Act, 146 University of Pennsylvania Law
Review, 1097.
Heise, Lori L., "Violence, Sexuality and Women's Lives" in Conceiving

Sexuality Approaches to Sex Research in a Post Modern World, ed.
299
BIBLIOGRAPHY
by Richard G. Parker and John H. Gagnon, 109 (1995). Routledge,

New York and London.
Herman. Dianne, "The Rape Culture" in Women A Feminist

Perspective, ed. By Jo Freedom, 3rd ed., 20 (1984). Mayfield
Publishing Company, California.
Hussain, Neelam, "Family Violence in Pakistan" in Eliminating

Violence Second Asian Regional Workshop on the Elimination of
Violence Against Women, Kathmandu, April 1-7, 1996, Papers and
Proceedings, [A Joint Workshop of MATCH International Centre,
(Canada) and Women Awareness Centre, (Nepal)]. Published by
MATCH International Centre, Canada.
Hussain Tahir and Mary Tahir, "A Spatio Temporal Analysis of Child
Rape in India" in Child Victims of Crime Problems and Perspectives,
ed. by M.C. Gupta, K.Chockalingam and Jaytilak Guha Roy,
145(2001). Gyan Publishing House, New Delhi.
-Incest Some of Us Learn as Children" paper presented in National

Seminar on Atrocities Against Women and Family Violence. (Dec..
1987). [Name of the author is not on record].
Jaising, Indira, "Making Human Rights Norms Measure Upto Women's

Needs" in From The Lawyers Collective, vol.12. no.2. 4(1997).
Jordan, Ann D., "Human Rights. Violence Against Women, And

Economic Development "The People's Republic of China Experience",
5 Columbia Journal of Gender and Law 216.
300
BIBLIOGRAPHY
Kannabiran, Kalpana, "Rape and the Construction of Communal

Identity" in Embodied Violence Communalising Women's Sexuality
in South Asia, ed. by Kumari Jayawardena and Mulathi de Alwis, 32
(1996). Kali for Women, New Delhi.
Knop, Karen, "Re/Statements : Feminism and State Sovereignty in

International Law", 3 Transnational Law and Contemporary Problems,
293.
Kant, Anjani, "Critical Comment on the Case of Raju V. State of

Karnataka with Krishna V. State of Karnataka" Cri. U. 75 (1994).
Kapur, Naina, "Dealing With Child Sex Abuse Betrayed Trusts....."

in The Sad and Solitary World of Child Sexual Abuse, Jagori
Publication. (The year of publication is not on record).
Kelly, Liz and Jill Radford, "Nothing Really Happened : The

Invalidation of Women's Experiences of Sexual Violence" in Women,
Violence and Male Power, ed. by Marianne Hester, Liz Kelly and Jill
Radford, 19 (1996). Open University Press, Buckingham. Philadelphia.
Kelly, Liz, "Wars Against Women : Sexual Violence, Sexual Politics

and the Militarized State", in State of Conflict Gender, Violence and
Resistance, ed. by Susie Jacobs, Ruth Jacobson and Jennifer
Marchbank, 45 (2000). Zed Books, London and New York.
Khan, Naira, "Zimbabwe Sexual Harassment of Women at the

Workplace : Organizational and Health Consequences", in Work and
Health : Revealing the Hidden Health Burden of Women Workers,
301
BIBLIOGRAPHY
Women's Health Collection/2 Latin American and Carribean Women's

Health Network.
Klein, Dorie, "Violence Against Women : Some Considerations

Regarding Its Causes and Its Elimination" in The Criminal Justice
System and Women Offenders, Victims, Workers, ed. and compiled
by Barbara Raffel Prince and Natalie J. Sokoloff, 203 (1.982). Clark
Broadman Company Ltd., New York.
Klein, Marty, "The Meaning of Sex", Electronic Journal of Human

Sexuality, Vol.-I..
Koss, Mary P. and Hobart H. Cleveland, "Sexual Roots of Date Rape

Lead to Intractability and Politicization" in Researching Sexual
Violence Against Women Methodological and Personal
Perspectives, ed. by Martin D. Schwartz, 4 (1997). Sage Publications,
California.
Krishna, Shashank. "Outraging and Insulting the Modesty of Woman :

A Study in Light of Rupan Deol Bajaj v. K.P.S. Gill, AIR 1996 SC 309
: 1996 Cri LJ 381", 2003 Cri L.T 306 (Journal).
Lee, Yumi, Violence Against Women "Reflections on the Past and

Strategies for the Future An NGO Perspective", 19 Adelaide Law
Review, 45.
Lingren, Herbert G., "Dating Violence and Acquaintance Assault",

Nebraska Cooperative Extension NF 95 244.
302
BIBLIOGRAPHY
Lipper, Nicolle R., "Sexual Harassment in the Workplace : A

Comparative Study of Great Britain and the United States",
Comparative Labour Law Journal, Vol. 13, 293 342.
Mac Farlane, Kee, "Sexual Abuse of Children" in The Victimization of

Women, 8th printing, ed., by Jane Roberts Chapman and Margaret
Gates, 81 (185). Sage Publications, California.
Mackinnon, Catharine A., "Disputing Male Sovereignty: On United

States v. Morrison", Harvard Law Review, vol-114, no.1, 135 (2000).
Mackinnon, Catharine A., "Sexual Harassment: The Expenditure" in

The Criminal Justice System and Women Offenders, Victims,
Workers, ed. and compiled by Barbara Raffel Price and Natalie J.
Sokoloff, 353 (1982). Clark Broadman Company Ltd., New York.
Mackinnon, Catharine, "Toward Feminist Jurisprudence" in The

Women Question, ed. by Mary Evans, 2nd ed., 246 (1994). Sage
Publications.
Madsen, Lene, "Violence Against Women as a Key Gender Issue in

Canada and Around the World" in Eliminating Violence Second
Asian Regional Workshop on the Elimination of Violence Against
Women, Kathmandu, April 1-7, 1996, Papers and Proceedings, [A
Joint Workshop of MATCH International Centre, (Canada) and
Women Awareness Centre, (Nepal)]. Published by MATCH
International Centre, Canada.
Mahoney Patricia, "Marital or Spousal Rape", The Wellesley Centers

303
BIBLIOGRAPHY
For Women, (April, 2000).
Malik, Sumeet, "Marital Rape" in From the Lawyer's Collective, 13

(Jan. 1998).
"Marital Rape", prepared by Minnesota Center Against Violence and

Abuse. (1999).
Martin, Susan Ehrlich, "Sexual Harassment : The Link Between

Gender,
Stratification, Sexuality and Women's Economic Status" in Women A

Feminist Perspective, ed. by Jo Freeman, 3rd ed., 54 (1984). Mayfield
Publishing Company, California.
Mathur, Kanchan, "Bhateri Rape Case -- Backlash and Protest" 27

EPW 2221 (1992).
Mathur, Kanchan, "From Private to Public" in Institutions. Relations

and Outcomes a A Framework and Case Studies for Gender Aware
Planning, ed. by Naila Kabeer, Ramya Subrahmanian, 288 (1999). Kali
for Women, Delhi.
McDonald, Elisabeth, "Gender Bias and the Law of Evidence The

Link Between Sexuality and Credibility" 24 Victoria University
Wellington Law Review 175 (1994).
McDonald, Elisabeth, "Gender Bias and the Law of Evidence : The

Link Between Sexuality and Credibility", 24 Victoria University
Wellington Law Review, (July, 1994), 175 188.
304
BIBLIOGRAPHY
Mehta, T.U. "Court Procedure Including Evidence on Child Rape" in

Report of Seminar on Child Rape, National Commission for Women,
(Oct., 1992).
Meindersma, Christa, "The Convention on the Elimination of All Forms

of Discrimination Against Women (CEDAW) in Relation to Violence
Against Women : Ratifications, Reservations and Interpretation",
Background note for Ivfeeting on Ending Violence Against Women and
Girls in South Asia, Godavari, Kathmandu.
Menezes, Saira, "Sex Starved Swamis" Savvy 50 (1994).
Menon, Nivedita, "Rights, Law and Feminist Politics : Rethinking Our

Practice" in In the Name of Justice Women and Law in Society, ed.
by Swapna Mukhopadhyay, Institute of Social Studies Trust, 13
(1998). Manohar Publishers and Distributors, New Delhi.
Menon, Ritu, "Unsafe at Any Age : A Preliminary Discussion on Child

Rape in India" in Report of Seminar on Child Rape, National
Commission for Women, 93 (Oct. 1992).
"Myths and Reality of Rape" in National Workshop on Atrocities

Against Women and Family Violence, (Dec., 1987). [Name of the
author is not on the record].
Nambiar, Sonora Jha, "It Can't Happen to May Daughter" in The Sad
and Solitary World of Child Sexual Abuse, Jagori Publication. (The
year of publication is not on record).
305
BIBLIOGRAPHY
Nandal, Dr. Santosh, "Rapist and Death Sentence : A Review", 2003

Cri LJ 193 (Journal).
"Ordinary Experiences" in National Seminar on Atrocities Against

Women and Family Violence, (Dec., 1987). [Name of the author is not
on the record.
Pamphlet Violence Against Women : Legal Rights of Women in

Pakistan, Foreward by Asma Jahangir. Published by AGHS Legal Aid
Cell, Lahore, Pakistan.
Pathak, Ila and Sophia Khan, "Strategies to Eliminate Family Violence

: Experiences from Gujarat (India)" in Eliminating Violence Second
Asian Regional Workshop on the Elimination of Violence Against
Women, Kathmandu, April 1-7, 1996, Papers and Proceedings, [A
Joint Workshop of MATCH International Centre, (Canada) and
Women Awareness Centre, (Nepal)]. Published by MATCH
International Centre, Canada.
Patil, Ujwala, "Cultural Undercurrents in the Law on Rape" paper

presented at 5th National Conference of the Indian Association for
Women's Studies at Jadavpur, (Feb., 1991).
Patnaik, Reghunath, "Judicial Scrutiny for Protecting the Child as a

Victim From Sexual Abuse" in Child Victims of Crime Problems
and Perspectives, ed. by M.C. Gupta, K.Chockalingam and Jaytilak
Guha Roy, 157(2001). Gyan Publishing House, New Delhi.
Pereda, Carlos, "The Bad Reputation of Punishment", Buffalo Criminal

306
BIBLIOGRAPHY
Law Review, vol.5, 405 (2002).
Pincus, Stephen M. and David M. Rosen, "Fighting Back : Filing Suit

Under the Violence Against Women Act", 33 Trial 20.
Pitts, Victoria L. and Martin D. Schwartz, "Self-Blame in Hidden Rape

Cases" in Researching Sexual Violence Against Women
Methodological and Personal Perspectives, ed. by Martin D. Schwartz,
65 (1997). Sage Publications, California.
Pritchard, Sarah, "The Jurisprudence of Human Rights : Some Critical

Thought and Developments in Practice," (1995) Australian Journal of
Human Rights 2.
Proposals for Change of Sexual Assault Law Relating to Minors, by

Forum Against Sexual Abuse of Children, Delhi. (The year of
publication is not on record).
Punjabi, Kavita, "Responses to Sexual Violence : Towards Contesting

the Dominant Logic(s)" Paper 1 in Interrogating Disciplines
Disciplining Gender Towa-ds a History of Women's Studies in India,
CWDS 20th Anniversary Seminar (2004 New Delhi, Organized by
CWDSM (Feb. 19 22, 2001), New Delhi.
Punjabi, Kavita, "Sexual Violence and Mental Health : Confronting the

Paradox of the 'Guilty Victini' ", in Mental Health From a Gender
Perspective, ed. by Bhargavi V. Davar, 276 (2001). Sage Publications,
Delhi.
307
BIBLIOGRAPHY
Radford, Jill and Elizabeth A. Stanko, "Violence Against Women and

Children : The Contradictions of Crime Control under Patriarchy" in
Women Violence and Male Power, ed. by Marianne Hester, Liz Kelly
and Jill Radford, 65 (1996). Open University Press, Buckingham,
Philadelphia.
Rain, Ranjini, "The Evil Crime of Rape A Victim Oriented Approach

for Effective Justice" 29 CMLJ 196 (1993).
Ramanathan, Gayairi, "Living a Nightmare" in The Sad and Solitary

World of Child Sexual Abuse, Jagori Publication. (The year of
publication is not on record).
Rao, S.V. Joga, "Sub Minimum Sentence in a Rape Case" 33 JILI 439
(1991).
"Rape The Ever Present Terror" Letter to the Editor, The Village
Voice, Oct. 22, 1979 presented in National Workshop on Atrocities
Against Women and Family Violence, (Dec., 1987). [Name of the
author is not on the record].
Ray, Sukumar, "Imposition of Death Sentence for Rapist For and

Against", 2003 Cri LJ 321 (Journal).
Rinchin and Shuhhada Maitra, "Child Sexual Abuse and Social Factors
Preventing Disclosures : Adolescent Girls' Narratives" in Mental
Health From a Gender Perspective, ed. by Bhargavi V. Davar, 262
(2001). Sage Publications, De (hi.
308
BIBLIOGRAPHY
Robin, Gerald D.
Forcible Rape : Institutionalized Sexism in the
Criminal Justice Systemin The Criminal Justice System and Women -
- Offenders, Victims, Workers, ed. and compiled by Barbara Raffel
Price and Notalie J. Sokoloff, Clark Broadman Company Ltd., New
York. (1982).
Rozee, Patricia D., "Sexual Victimization -- Harassment and Rape" in

Issues in Psychology of Women, ed. by Maryka Biaggio and Michel
Hersen, 93 (2000). Kluwer Academic/Plenum Publishers, New York,
Boston Dordrecht, London, Moscow.
Sanyal, S., "Traumas of Child Victim of Rape" in Child Victims of

Crime Problems and Perspectives, ed. by M.C. Gupta, K.
Chockalingam and Jaytilak Guha Roy, 131 (2001). Gyan Publishing
House. New Delhi.
Sarkar, Lotika, "Rape A Human. Rights Versus a Patriarchal

Interpretation" I Indian Journal of Gender Studies 69 (1994).
Sathe, S.P., "Sexism in Law and Justice" 53 IJSW 474 (1992).
Savitri Gonesekere, "Gender Based Violence : The Response of the Sri

Lanka Legal System in The World of Gender Justice, ed. by Murlidhar
C. Bhandare, 77 (1999). Har-Anand Publications, Delhi.
Saxena, Poonam Pradhan and Sarika Lath, "An Indian Perspective on

Domestic Violence" in Eliminating Violence Second Asian Regional
Workshop on the Elimination of Violence Against Women,
Kathmandu, April 1-7, 1996, Papers and Proceedings, [A Joint
309
BIBLIOGRAPHY
Workshop of MATCH International Centre, (Canada) and Women

Awareness Centre, (Nepal)]. Published by MATCH International
Centre, Canada.
Schmitz, Christin, "Whack Sex Assault Complaint at Preliminary

Enquiry" in Women, Law and Social Change Core Readings and
Current Issues, ed. by T. Brettel Dawson, Carleton University,
Carleton Legal Studies Series, 67 (1990). Captus Press, Canada.
Schneider, Beth E., "Put Up and Shut Up : Work Place Sexual

Assaults", in Violence Against Women The Bloody Footprints, ed.
by Pauline B. Bard and Eileen Geil Moran, 57 (1993). Sage
Schram, Donna D. "Rape" in The Victimization of Women, ed. by Jane

Roberts Chapman and Margaret Gates, 8th printing, 53 (1985). Sage
Schwartz, Martin D., "Emotion in Researching Violence Against

Women" in Researching Sexual Violence Against Women -
Methodological and Personal Perspectives, ed. by Martin D. Schwartz,
71 (1997). Sage Publications, California.
Scutt, Jocelynne A., "Judicial Bias : Confronting Prejudice in the

Courtroom" in Women's Encounters With Violence - Australian
Experiences, ed. by Sandy Cook and Judith Bessant, 89 (1997), Sage
Series on Violence Against Women, Sage Publications, California.
Scutt, Joycelynne A., "Sexism in Criminal Law" in Women and Crime,

310
BIBLIOGRAPHY
ed. by S.K. Mukherjee and J.A.. Scutt, 1 (1981)
Sexual Assault, IVVAA Text 2000 - Chapter 10 at

http://www.oip.usdoj.gov/ovc/ assist/vaa2000/acaderni/J-10-SA.hzm.
Shamim, Ishrat, "Violence Against Women : Rethinking Strategies

(Bangladesh)" in Eliminating Violence - Second Asian Regional
Workshop on the Elimination of Violence Against Women,
Kathmandu, April 1-7, 1996, Papers and Proceedings, [A Joint
Workshop of MATCH International Centre, (Canada) and Women
Awareness Centre, (Nepal)]. Published by MATCH International
Centre, Canada,
Sheffield, Carole J., "Sexual Terrorism" in Women - A Feminist

Perspective, ed.by Jo Freeman, 3rd ed., 3 (1984). Mayfield Publishing
Company, California,
Sheehy, Elizabeth, "Canadian Judges and the Law of Rape : Should the
Charter Insulate Bias?" in Women, Law and Social Change - Core
Readings and Current Issues, ed. by T. Brettel Dawson, Carleton
University, Carleton Legal Studies Series, 69 (1990). Captus Press,
Canada.
Sheehy, Elizabeth, "Evidence Law and Credibility Testing of Women :

A Comment on the E Case". (2002) QUTLJJ10.
Shields Nancy M. and Christine R. Hanneke, "Battered Wives"

Reactions to Marital Rape", in The Dark Side of Families - Current
Family Violence Research, ed. by David Fin_kelhor, Richard J. Gelles,
311
BIBLIOGRAPHY
Gerald T. Hotaling and Murray A. Straus, 131 (1983). Sage

Publications, Beverley Hills, London, New Delhi.
Shim, Kyungmi, "Sexual Harassment in the Work Place" in Young

Feminist Scholars in Asia, 2000 - Conference organized by Korean
Women's Institutes, Asian Centre for Women's Studies, E wha
Woman's University in Korea, (Oct. 17, 2000).
Singh, Jaspal, Rape Law Few Reflections, R.V. Kelkar Memorial

Lecture (4.4.98), Organized by Faculty of Law, University of Delhi.
Singh, Kirti, "Increased Judicial Awareness to the Problems of

Women" working paper presented at III National Conference on
Women's Studies on Gender Justice, Punjab University, (1986).
Singh, Subhash Chandra, "Consent in Rape : A Victim's Perspective",

2001 Cri LJ 40.
Sivarammayya, B., "Women and the Law" Annual Survey of Indian

Law, 115 (1990).
Smart, Carol, "Rape Law and the Disqualification of Women's

Sexuality" in Feminism and the Power of Law, ed. by Carol Smart, 26
(1989). Routledge, London and New York.
Srivastava, Yamini, "Need for Amendment in Rape Law : A Focus on

Consent", 2003 Cri LJ 327 (Journal).
Stanko, Elizabeth A., "I Second That Emotion Reflections on

Feminism, Emotionality and Research on Sexual Violence" in
312
BIBLIOGRAPHY
Researching Sexual Violence Against Women Methodological and

Personal Perspectives, ed. by Martin D. Schwartz, 74 (1997). Sage
Stanko, Elizabeth A., "Reading Danger : Sexual Harassment,

Anticipation and Self-Protection" in Women, Violence and Male
Power, ed. by Marianne Hester, Liz Kelly and Jill Radford, 50 (1996)
Open University Press, Buckingham, Philadelphia.
Steward. Hamish, "Harms, Wrongs and Set-Backs in Feinbetg's Moral

Limits of the Criminal Law", Buffalo Criminal Law Review, vol.5,
47(2002).
Storrie. Kathleen. "Work Environment, Sexual Harassment and

Women's Health", in Women, Medicine and Health, ed, by B. Singh
Bolaria, and Rosemary Bolaria, 301 (1994). Fernwood Publishing,
Halifax, Nova Scotia and Social Research Unit, Department of
Sociology, University of Saskatchewan, Canada.
Strevenson, Kim, "Observations on the Law Relating to Sexual

Offences : The Historic Scandal of Women's Silence", (1999) 4 Web
JCL, pp-1-12 at http://www. webjcli.ncl.ac-
uk/1999/issuc4/strevenson4.html.
Sundaram, A.K., "Offence of Rape Reflections on a Recent Supreme

Court Decision" XVI DLR 73 (1994).
Tern Kin, Jennifer, Women, Rape and Law Reform" in The Woman
Question, ed. by Mary Evans, 2nd ed., 223 (1994), Sage Publications,
313
BIBLIOGRAPHY
London.
Tierney, Kathleen J. and David L. Corwin, "Exploring Intra Familial

Child Sexual Abuse" in The Dark Side of Families Current Family
Violence Research, ed. by David Finkelhor, Richard J. Gelles, Gerald
T. Hotaling and Murray A. Straus, 102 (1983). Sage Publications,
Beverley Hills, London, New Delhi.
Truyol, Berta Esperanza Hernandez, "Sex Culture and Rights, A

Reconceptualization of Violence for the Twenty First Century, 60,
Albany Law Review, 607.
"Unintended Consequences of Rape Shield Laws", Daily Policy Digest,

National Center for Policy Analysis, ( 1 Oth January, 2002) at
http://www.ncpa.org/iss/cri/ 2002/pdo1102c.html.
Verghese, Rose, "Age of the Accused : A Mitigating Factor in Rape

Cases" 16 CULR 172 (1992).
Waring, Marilyn, "Gender and International Law : Women and the

Right to Development", 12 Australian Yearbook of International Law
177.
White, Jacquelyn W. and John A. Humphrey, "A Longitudinal

Approach to the Study of Sexual Assault" in Researching Sexual
Violence Against Women Methodological and Personal Perspectives,
ed. by Martin D. Schwartz, 22 (1997). Sage Publications, California.
Wirth, Linda, "Sexual Harassment at Work", in Promoting Gender
314
BIBLIOGRAPHY
Equality at Work Turning Vision Into Reality, ed. by Eugenia Date

Bah, (A Study Prepared for the ILO within the Framework of the Inter-
departmental Project on Equality for Women in Employment), 130
(1997). Zed Books Ltd., London and New York.
Young, Cathy, "The Dark Side of Rape Shield Laws" at

http://reason.com.
Zabelina, Tat'iana, "Sexual Violence Towards Women" in Gender,

Generation and Identity In Contemporary Russia, ed. by Hiliary
Pilkington, (1996). Routledge, London.
REFERENCES
Ghazl;
Ihya Ulum ud Din
Hasan, Riffat;
Religious Human Rights in Global Perspective:
Religious Perspectives John Witte, Jr. and Johan D. van der Vyver
Eds. Martinus Nijhoff Publishers, 1996
Maudoodi, Abu al Ala;

Human Rights in Islam The Islamic
Foundation UK 1976, 1993
Qureshi, Asifa LLM;

Her Honor: An Islamic Critique of the Rape
Laws of Pakistan from a Woman-Sensitive Perspective
Rahman, Afzal ur; "Role of Muslim Women in Society" Seerah

Foundation, London, 1986
Rauf, Muhammad Abdul;

Umar al Faruq Al Saadawi Publications,
315
BIBLIOGRAPHY
1998
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SEXUAL VIOLENCE AGAINST WOMEN WITH SPECIAL

THESIS SUBMITTED FOR THE AWARD OF

This is to certify that Miss SONIA ANEJA has worked

Prof. Lalita Parihar

List of Abbreviation III-IV

List of Cases V-VIII

1. Concept of Sexual Violence 1

2. Determinants of Sexual Violence 7

3. Impact of Sexual Violence 10

4. Forms of Sexual Violence 12

Misconception about Rape 20

Myths about Rape 20

Motivation for Rape 21

Types of Relationship between Rapists and Victim 29

b)Sexual Harassment: Concept 31

7. Outlines of the Contents of the Chapters 36

CHAPTER -II 41-60

HISTORICAL PERSPECTIVE OF RAPE

Concept under Hinduism 41

Concept under Islam 49

RAPE: LEGISLATIVE DEVELOPMENTS IN INDIA

Law Since Independence 67

The Impact of Mathura case, Campaign for 71

Amendments and the 84th Law Commission Report

The bill of 1980, Joint Parliamentary Committee 79

Report of 1982 and the Amendment Act of 1983.

The Existing Law 82

Criminal Law (Amendment) Act, 1983 97

The Suggestions Proposed by the Law Commission of India 100

Code of Criminal Procedure (Amendment) Act, 2005 106

Code of Criminal Procedure (Amendment) Act, 2008 111

The Draft Criminal Law (Amendment) bill, 2010 113

The Draft Criminal Law (Amendment) bill 2012 115

ISSUES CONCERNING RAPE: A CRITICAL COMPARATIVE

Classification of offence: Rape - Sexual Offence or Assault? 121

Sexist Bias Against The Victim 126

a)Woman as a liar - False Accusations of Rape 128

b)Woman As a Temptress Victim Precipitated Rape 134

Genital Penetration v. Digital Rape 138

The Spousal Exception Clause Marital Rape 144

2. Issues Relating to the Trial of Rape 150

The Corroboration Requirement 166

Past Sexual History of the Victim 171

Conducting the Trial and Publicity during the Trial 178

Medical Examination of the Victim 184

CONCLUSION AND SUGGESTIONS

Special Legislation 256

Classification of Rape 257

Redefinig Rape 259

Age of consent 261

Essential of Corroboration 262

Political Sensitivity 263

Victim Caring Investigation and Trial procedure 264

Training Programmes and Special Courts 266

Judicial Sensitivity 267

Compensation and Rehabilitation 271

Media Sensitivity 272

On occasion of submission of this thesis, first of all I humbly

I am thankful to Prof. Kulwant Singh, Head and Dean,

I am placing high regards for my supervisors, Prof. Lalita

I have no words to acknowledge my indebtedness to my

I further express a deep sense of gratitude to Mr. Sajid

Thanks are also due to the Library staff of all universities

Abbas Ahmed Choudhary v. State of Assam, (2010) 2 CrL J 2060 (SC)

Abdul v. Emperor, AIR 1932 All 580

Apparel Export Promotion Council v. A.K. Chopra, 1999 1 SCC 759

Arjan Ram v. The State , AIR 1960 Punj 303

Balwant Singh and others v. State of Punjab, AIR 1987 SC 1080.

Bhimrao Harnooji Wanjari v. State of Maharashtra, 1975 Mah. LI

Bharat v. State of M.P, AIR 1992 SC 880

Bodhi Sattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922

Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753

Chammudin Sardar v. Emperor, AIR 1936 Cal.

Daler Singh v. State of Haryana, 1995 Cri L.1 614 (P & H)

Delhi domestic working women

Dhananjoy chatterjee v. State of West Bengal, 1994(2)SCC 220