This article is written by Meghna Sharma.
Table of Contents
In Raja v. The State of Karnataka (2016), the Supreme Court had this to say about the prosecutrix while acquitting the accused of gang rape:
“Her conduct during the alleged ordeal is also unlike a victim of forcible rape and betrays somewhat submissive and consensual disposition. From the nature of the exchanges between her and the accused persons as narrated by her, the same is not at all consistent with those of an unwilling, terrified and anguished victim of forcible intercourse, if judged by the normal human conduct…Her post-incident conduct and movements are also noticeably unusual. Instead of hurrying back home in a distressed, humiliated and a devastated state, she stayed back in and around the place of occurrence, enquired about the same from persons whom she claims to have met in the late hours of the night, returned to the spot to identify the garage and even look at the broken glass bangles, discarded litter etc. According to her, she wandered around the place and as disclosed by her in her evidence, to collect information so as to teach the accused persons a lesson. Her vengeful attitude in the facts and circumstances, as disclosed by her, if true, demonstrably evinces conduct manifested by a feeling of frustration stoked by an intense feeling of deprivation of something expected, desired or promised. Her confident movements alone past midnight, in that state, are also out of the ordinary.”
It is little wonder that one of the grounds that weighed with the Karnataka High Court to grant anticipatory bail to the rape accused, in Rakesh B. v State of Karnataka (2020), was that her explanation that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman. The court also mentioned that is not the way Indian women react when they are ravished. It’s a different matter that such observation was subsequently expunged by the Court at the instance of the prosecution.
In State v. Sushil Kumar (2013), the Delhi Sessions Court had even taken judicial notice of a “very disturbing trend” that young women “explore the greener pastures of bodily pleasure” and “conveniently fabricate the story of kidnap and rape in order to escape scolds and harsh treatment from the parents.”. The same Court added in State v. Ashish Kumar (2013) that“When a grown-up, educated and office-going woman subjects herself to sexual intercourse with a friend or colleague on the latter’s promised he would marry her, she does so at her own peril… She must understand that she is engaging in an act which is not only immoral but also against the tenets of every religion.”
Scope of the Constitution
Much can be said on the constitutional rights of a woman to enjoy sexual freedom and autonomy. Much has in fact been written about it in wake of the unfortunate order in 2019 by the former Chairman of Rajasthan State Human Rights Commission (also a former Chief Justice of Jharkhand High Court) where the Commission equated a woman in a live-in relationship with a “concubine” while opening the right to life in Article 21 translates into “an honourable life, not an animal-like life.” That would, however, be the subject matter of another article.
Again, the Punjab and Haryana High Court took the view in Vikas Garg v. State of Haryana (2017) that if a woman is blackmailed into developing sexual relations or exchanging nudes, she is showing a “promiscuous attitude and a voyeuristic mind”. The High Court suspended the sentence awarded to the three rape convicts on the ground, amongst others, that “…the narrative does not throw up gut-wrenching violence, that normally precedes or accompany such incidents.” Even the Delhi High Court had, while acquitting the rape accused in Mahmood Farooqui v. State (Govt. Of NCT of Delhi) (2017), propounded the now-infamous theory that “instances of woman behaviour are not unknown that a feeble no may mean a yes”.
The focus of our Courts remains the stereotypical imagery of how a prosecutrix should react when faced with sexual assault which, once presented, sways the Court into accepting the testimony of the prosecutrix. Witness the decision of the Supreme Court in Kamalanathha v. State of Tamil Nadu (2005), where the Court emphasized that “While recalling the forcible act of rape, the [trial] court noticed the torrential flow of tears from the eyes of P.W.8 with all pain and conscience shocked, the court listened to the most startling and saddening story of P.W.8 who is yet to attain mental maturity.”
That takes us to the question as to whether there is a particular pattern or way in which a victim of sexual assault must behave. Global studies have consistently held that there is none. Julie Alison and Lawrence Wrightsman, both American professors of psychology, have specifically found in their book Rape: The Misunderstood Crime (1993) that “there is no universal reaction to sexual assault” and that there are as many responses to sexual assault as there are victims.
Nor can one condemn a victim for not ‘fighting back’ the sexual abuse. Neurobiological research has concluded that the so-called fight-or-flight response to danger should more accurately be called “fight, flight or freeze.” Studies reflect that even after the initial response of fighting back, a victim can become involuntarily immobile as a protective response of the brain and body.
Opinion of jurists
Then there may be cases where the victim might be embarrassed to admit or explain her experience of shame and might take time to summon the courage to do so. Donald L. Nathanson, the famous psychiatrist, had developed the compass of shame in 1992 – the four poles of the compass of shame associated with the different ways in which a human being can react when he/she feels shame. These are – withdrawal, attacking oneself, avoidance and attacking others. Scott Berkowitz of RAINN (Rape, Abuse and Incest National Network) points out that self-blame and confusion are common in the victims of sexual assault. This could often be because of how the accused presents himself. Veronique Valliere, a psychologist and counsellor of the accused, explains the psychology of the offenders – “They camouflage the act as horseplay or humour, or they act as though nothing happened.”
These, and many more, studies underscore the point – there is scientific evidence that a victim of sexual assault need not react the same way. However, the above noted judicial pronouncements indicate the complete innocence about the existence of such scientific evidence. The situation gets compounded at times by the utter insensitivity to the degrading and dehumanizing impact of sexual assault on the victim and her soul. A good example is the Madras High Court’s decision in V Mohan v. State (2015), where a daughter was born out of the rape to the prosecutrix. The High Court cited religion and the possibility of reconciliation between the prosecutrix and her rapist as a “happy conclusion”. One can only shudder at the horrific plight of the prosecutrix who ended up marrying her rapist.
It is a matter of deep regret that our Courts continue to link the commission of a crime with notions of shame or loss of honour which the Courts perceive should be expressed by a sexual assault victim. Such erroneous perception invariably spills over in deciding other cases generally relating to gender roles. Professor Andrea Miller conducted research on gender ideologies of judges to conclude that “…judges consciously support traditional gender roles, where women are more or less confined to domestic caregiving roles and men are confined to more public, career-based roles”. This American study seems to be true for Indian courts as well.
The decision of the Kerala High Court in Ranjith P.C. v. Asha Nair. P (2020) illustrates this position. The Court noted that the relations of the wife and the mother-in-law was not cordial which had resulted in the wife insisting that the couple live separately. Such insistence was construed to constitute immense pressure and torture on the husband entitling him to divorce. Surely, a wife is entitled to a peaceful matrimonial home. As regards the duty of a son to look after his parents, a daughter has the same duty towards her parents. One has yet to come across a judicial decision in India where the insistence by a husband that he would not stay in the parental house of his wife was held to have constituted immense pressure and torture on the wife, even where the husband is on the best of terms with his in-laws.
Again, in Bhaskar Das v. Renu Das (2020), the Gauhati High Court relied, amongst other factors, upon the refusal of the wife to wear the ritualistic “sindoor and sakha” to grant a divorce to the husband, holding that “compelling the husband to continue to be in matrimony with the wife may be construed to be harassment”. A husband, of course, is not even required to wear any mark to show that he is married.
Such pronouncements, far from protecting the human rights of women, have promoted gender-biased societal norms. Notions of rationality are often ignored in matters of religion. Nothing can be more telling than the state of affairs in our society than the fact that a Constitution Bench of the Apex Court had to be constituted to deliberate for days on the question which essentially boiled down to whether menstruating women have the right to enter a place of worship. A school student well versed in elementary biology could have told the men and women who run the Indian State as also its religious leaders that menstruation does not make a woman impure nor does it amount to an allurement for sex or constitute a distraction. Rather, it is merely a natural biological process, just as natural as the process by which all humans breathe. The sadder part is that even today such obvious truth is not beyond debate – whether in our Courts or in our society.
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