Author: Vanshika Mangla, Christ university, Bangalore
ABSTRACT-
The article delves into understanding the rape laws existing in the country and how they influenced the judgment given by the Supreme Court in the case of Tukaram v State of Maharashtra. The case revolved around the custodial rape of a tribal girl, where the Trial Court acquitted the accused based on the sexual history of the victim. However, the Bombay High Court reversed the order and held them guilty. Unfortunately, the Supreme Court upheld the decision of the Trial Court. The article further explores the amendments which were brought in the rape laws as a result of this case and their implications.
ARTICLE-
The case of Tukaram v State of Maharashtra explored the shortcomings of the rape laws which were existing in the earlier times. It is one of the landmark judgments in the history of criminal laws as it played an important role in refining the laws related to rape in India. Certain amendments brought in the rape laws are a result of this precedent.
This case revolves around the custodial rape of a tribal girl named Mathura. She used to live with her brother and used to work as a labourer. She fell in love with a boy in whose house she used to work. Later, they decided to get married. A report was filed by her brother accusing that his sister Mathura had been taken by force and the boy’s family members were called to the police station. Later, as everyone was leaving, one police constable asked Mathura to stay back for a while. He, along with other police constable, committed rape on Mathura while she was in the custody. The police constables had threatened to harm her family members if she protested and resented against them. After being released from the custody, she went to her family and told them about what happened with her.
A medical examination was conducted on her body to ascertain whether rape has been committed on her. During the medical examination, it was found out that there were no bruises on her body which depicted that assault had been committed on her. However, it was discovered that her hymen showed old ruptures. This suggested that she was habituated to sex and she has been involved in sexual activities earlier. Further, 2 finger test was committed on her to ascertain whether she was habituated to sex or not. Her vagina was not tight and could easily admit the two fingers, which meant that she must previously have sexual intercourse.
The question to be determined by the court was whether the victim agreed to sex or she was forced to into it? Further, the question was what acts of the victim would amount to consent?
The Trial Court was of the opinion that rape had not been committed and that sexual intercourse was done with her consent. The reasoning given by the court was that the victim was habituated to sex, as proved by the medical examination and the 2-finger test, hence she must have consented to sexual intercourse. Hence, the Trial Court acquitted the police constables.
The case went as an appeal to the Bombay High Court. Bombay High Court had a different opinion about this. It made an accurate distinction between submission and consent. It clarified that submission by an individual is out of fear and not willingly, which is different from consent. It is pertinent to note here that no signs of protest by the victim was to be viewed as submission and not consent. This is so because there was fear of harm being caused to her family members. The police constables were obviously the higher authority, so protesting against them might prove to be detrimental to the victim’s family members. Further, regarding the contention that she was habituated to sex and hence she must have consented to the sexual intercourse, the Bombay High Court opined that both the police constables were strangers to the victim, hence there was less probability that she must have consented to sexual intercourse with them. Hence, the Bombay High Court reversed the order of acquittal of both the police constables and held then guilty for committing rape on the victim.
This decision of the Bombay High court is a progressive judgment as it is very important to mark a clear line between the concepts of ‘Submission’ and ‘Consent’. Although a victim might not have resented against rape, there could be certain reasons for the same. This submission by the victim should not be considered as consent on her part. Further, the opinion of the Bombay High Court on the contention that the victim was habituated to sex is valid and sensible. Even if an individual has consented to have sexual intercourse with a specific person at a particular occasion, this does not imply that he or she has consented to have sexual intercourse with every person and at all times. Hence, even if Mathura was habituated to sex and she had involved in sexual intercourse earlier, this is not sufficient to prove that she must have gicen consent to engage in sexual intercourse with the police constable as well.
However, the Bombay high Court order went as an appeal further to the Supreme Court. Supreme Court reversed the order of the Bombay High Court and upheld that of the Trial Court. Supreme Court was of the opinion that the fact that the victim was habituated to sex is sufficient in itself to prove the presence of consent to engage in sexual intercourse with the accused. It further held that there were no signs of resistance by the victim, hence she consented to sex. Therefore, Supreme Court acquitted the accused. This judgment of the Supreme Court was highly criticized.
Repercussions of Tukaram v State of Maharashtra:
This case was highly criticized. Many activists protested against this judgment. They wanted changes in the current rape laws in India. They were not satisfied with the decision of the Supreme Court and were of the opinion that the Supreme Court erred in giving the judgment. The 2-finger test which was relied on by the court was one of the main issues. The issue was that the court relied on the sexual history of the victim to arrive at the decision and did not look into whether consent was given by her or not.
Due to protests against the Mathura judgment, Criminal Law Amendment Act was passed in 1983. After this amendment, the concept of custodial rape was incorporated in the Indian Penal Code, 1860. Further, the severity of sentence of the accused was enhanced. Moreover, the judiciary started to re-look into the difference between the concepts of submission and consent. Judiciary took the approach that sexual history of the victim, though relevant, should not be the only determining factor for proving consent in the cases of rape. This was a very progressive step towards ensuring justice to victims in cases of rape.
CONCLUSION-
The case of Tukaram v State of Maharashtra underlined the flaws in Indian rape laws and particularly the misunderstanding about the concept of consent and the treatment of victims based on their sexual history. Despite the progressive judgment given by the High Court of Bombay by making a clear distinction between consent and submission, the Supreme Court made error in deciding that the accused were innocent. This controversial judgment of the Supreme Court called for an amendment in the present rape laws. This resulted in large scale protests in the country as a result of which, Criminal Amendment Act, 1983 was enacted. The aftermath of this case is that there are crucial changes in the rape laws such as victim centric approach and non-relevance of sexual history of victim to decide the cases of rape.
FAQ-
Q1. What were the legal issues in the case of Tukaram v State of Maharashtra?
A1. The legal issues in the case were whether there is a distinction between submission and consent and whether the victim’s sexual history be an essential factor to determine the crime of rape.
Q2. What was the Trial Court’s decision?
A2. The Trial Court acquitted the accused by stating that the fact of sexual history and no signs of resistance by the victim were sufficient to prove consent to engage in sexual intercourse with the accused.
Q3. What was the decision of the Bombay High Court?
A3. Bombay High Court diverted from the decision of the Trial Court as it made a distinction between submission and consent and hence, found the accused to be guilty.
Q4. What was the decision of the Supreme Court?
A4. The Supreme Court upheld the decision of the Trial Court stating that the victim was habituated to sex hence she consented to it and acquitted the accused.
Q5. What were the repercussions of the case?
A5. As a result of the judgment in this case, the Criminal Amendment Act, 1983 was encated to ensure that sexual history of the victim is not taken into consideration for determining her consent in the cases of rape.
