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Lacunae in law

Print edition : Jan 04, 2008 T+T-

At a rally in Allahabad on December 8 to create awareness about the Domestic Violence Act.-RAJESH KUMAR SINGH/AP

Indias legal response to violence against women has by and large been characterised by the absence of sympathy for the victim.

At a rally

The World Human Rights Conference in Vienna recognised gender-based violence as a human rights violation in 1993. In the same year, the United Nations, through a declaration, defined violence against women as any act of gender-based violence that results in, or is likely to result in, physical, sexual, or psychological harm or suffering to a woman, including threats of such acts, coercion or arbitrary deprivations of liberty, whether occurring in public or private life.

In 1995, the U.N.s Special Report on Violence Against Women added violence perpetrated or condoned by the State to this definition. Because of the social group to which she belongs, in times of war, riots and ethnic, caste or class violence, a woman may be raped or brutalised as a means of humiliating the community to which she belongs. Male perception of the female sex and women as the property of men contributes to this extreme form of gender violence.

It may be worthwhile to look at Indias legal response to the first two of these three major forms of violence, namely, violence against women in the private and public domains, and discern what many observers have noted as the absence of attitudes sympathetic to women among those enforcing or interpreting these laws.

Section 375 of the Indian Penal Code (IPC), which defines the rape of a woman by a man, has an important exception: sexual intercourse by a man with his wife, the wife not being under 15 years of age, is not rape. Thus marital rape as an offence is outside the purview of Indian criminal law.

The introduction of Section 376A in the IPC somewhat limits this exception. Under this Section, a man who has sexual intercourse with his wife who is living separately from him under a decree of separation or under any custom or usage, without her consent shall be punished with imprisonment up to two years and shall also be liable to pay a fine.

Comparison with the punishments prescribed in the IPC for other categories of rape brings out starkly the bias in the law in favour of judicially separated men. The IPC prescribes a minimum sentence of seven years for those convicted in non-custodial rape cases and 10 years in the case of custodial rapes.

The Law Commission has rejected proposals to repeal the marital rape exception on the grounds that it would amount to excessive interference with the marital relationship (Review of Rape Laws, 172nd Report, 2000, Chapter 3, page 14).

Clearly, some of the ingredients of Section 375 apply also to marital rape. These include the commission of the offence by the man against the victims will and without her consent. The assumption that a woman forsakes her right to refuse consent for sexual intercourse with her husband as long as the marriage persists has been questioned by many feminist scholars. Such an assumption would inevitably mean that the law treats women as the property of their husbands.

In R v. R (Rape: Marital Exemption) (1991), the House of Lords widened the scope of criminal liability by declaring that a husband could be charged as the principal offender in the rape of his wife. This decision obliterated the protection of the husband from such prosecution under the doctrine of marital exemption. The wife was supposed to have given a general consent to her husband as a natural implication of the marriage. This has now become an outmoded view of marriage in the U.K.

Section 498A inserted into the IPC in 1983 is a major legislative measure to tackle cruelty by a husband or relatives of the husband. Under it the offender could be punished with imprisonment for up to three years and also be liable to pay a fine. The Amendment Act, which introduced this Section in the IPC, had the objective of combating the menace of dowry deaths. Section 498A covers both physical and mental abuse. It is felt that Section 498As scope is limited as it is silent on other kinds of cruelties involving psychological, economic and sexual abuses. The Section defines cruelty as any act that drives a woman to commit suicide or cause grave injury or danger to life.

The same Act also introduced Section 113A to the Indian Evidence Act to raise a presumption regarding the abetment of suicide by a married woman, if the suicide took place within seven years of her marriage. Her husband or such relative of her husband would be presumed to have abetted her suicide in such a case.

In 1986, the Dowry Prohibition (Amendment) Act introduced Section 304-B in the IPC to define dowry death. The court shall presume that an accused person caused a dowry death if the death of the woman is an unnatural one and it happened within seven years from the date of marriage. The woman must have been subjected to cruelty, relating to a demand for dowry, in the immediate period before her death.

The Domestic Violence Act, enacted in October 2006, provides for, among other significant reliefs, the right to residence in the shared household, the right to protection orders, and the mandated return of Stree-dhan (dowry), besides giving courts the power to restrain the alienation of assets. It defines violence in all its dimensions, from the physical to the sexual and the economic. This definition was taken from the U.N. Model Code on domestic violence and from the Convention on the Elimination of All Forms of Violence Against Women, to which India is a party. It applies to not only married women but also women in live-in relationships and daughters/mothers facing violence in domestic relationships.

One year on, the Act is not exactly a success story. Lawyers Collective, a non-governmental organisation (NGO), which was largely involved with this law in its formative stages, undertook the task of evaluating enforcement using available data. Its report shows that the main users of this law are women in matrimonial relationships. A few widows have used it to prevent dispossession, and some young girls have prevented forcible marriages by fathers.

The major breakthrough the law achieved was the declaration of the right to reside in the shared household. The law makes a clear distinction between the ownership of the shared household and the right to reside in it. What the law does is to grant the right to reside and not to be dispossessed, except by authority of law.

Indira Jaising of Lawyers Collective wrote in an article published in Indian Express on October 26: This provision suffered a major setback at the hands of the judiciary. The Supreme Court, even before the ink on the Act was dry, declared in a judgment (S.R. Batra v. Taruna Batra) that a woman could claim this right only in relation to a household owned/rented by her husband. This means that if her husband lives with his parents and she has her matrimonial residence there, she cannot claim right to residence there. The judgment not only overlooks the law itself, it also overlooks the existing social reality of the joint family, which continues to be the predominant pattern.

The report prepared by Lawyers Collective documents how several courts have refused relief to women on the basis of this judgment. It demonstrates that in India women have lesser protection than tenants, who cannot be evicted except by the procedure established by law.

Under Section 375 of the IPC, a man is said to commit rape if he has sexual intercourse with a woman under any of the six specified circumstances. They are: i) it should be against her will; ii) without her consent; iii) when her consent has been obtained by putting in her, or in any person whom she is interested in, the fear of death or of hurt; iv) when she consents believing that he is her husband, whereas he is not; v) when she consents by reason of unsoundness of mind or intoxication or administration of stupefying substance; or, vi) when she is under 16 years of age. The provision also says that penetration is sufficient to constitute the sexual intercourse necessary for the offence of rape.

Researchers have found serious gaps in using this provision to secure the conviction of alleged rapists. Pratiksha Baxi says in her article in the book The Violence of Normal Times (edited by Kalpana Kannabiran, Women Unlimited, New Delhi, 2005), that the popular perception that women commonly lie about being raped inflects medical jurisprudence and in the testimony to rape.

She points to one of the medico-legal propositions that acquires an axiomatic status that an able-bodied adult woman cannot be raped by an unarmed man. According to her, in the trial courts, the view is that women have the natural ability to resist rape by crossing their legs. Here, she says, the male body is not thought of as a weapon, and womens ability to resist is seen as given in nature.

When she conducted interviews with experts at the Forensic Science Laboratory, she found that the practice of using lie-detection tests on raped women was common. She added that medico-legal textbooks did not prescribe the use of lie-detection tests on raped women, and to the best of her knowledge the documentation regarding such tests did not enter at the trial or appellate level.

For the victim, the process of testifying itself adds to her trauma. Pratiksha Baxi notes that it makes her relive the rape and humiliates her. Trial court Judges, she finds, recognise emotional distress produced by the testimony not as a sign of suffering but as a sign of complicity in a lie.

She adds: The cross-examination of the victim itself produces trauma. It attacks the reputation and veracity of the victim. It makes her relive the rape and humiliates her. The production of trauma by the law itself is a serious issue that severely compromises the mental health of rape survivors.

Another issue in establishing rape is the ethics of the two-finger test. The test was evolved as an answer to the medico-legal problem that in some cases the hymen might remain intact (especially in female children) despite repeated instances of penile penetration. The answer was found in partial penetration, which denoted penile penetration of the vaginal orifice irrespective of whether the hymen was ruptured or not.

The test is performed by a technique that is in a mimetic relationship to the act of penile penetration. The test replaces the notion that the presence or absence of the hymen can by itself signify virginity or its absence. It is a technique that verifies whether the hymen is broken or not, and whether it is distensible or not.

The substitution of the erect penis, Baxi points out, rests on the precarious desexualisation of the clinical practice. She adds:

The line between the two-finger test (as if it were a surgical procedure) and assault is a thin one, which is determined by whether the medical examination is carried out with or without the consent of the patient. Medical jurists have been aware of the mimesis in their emphatic recommendation that doctors must secure the patients consent for this test. Consent then converts assault into a medical test.

Baxi further asks: The issue of consent is constitutive, for to refuse the test is interpreted as evidence of a false complaint. It is not clear what this consent entails. Did it imply consent to allow the medical jurist to penetrate her with her consent or is it consent towards allowing the state to produce signs of her own subjection?

And, how are the results of the test interpreted? When two or more fingers are easily admissible in the vagina, the patient might be characterised as being used to sex or habituated to sex. The word habituated, Baxi says, lies in the realm of interpretation, deriving its meaning from the medico-legal domain, for the word does not appear in any statute. The words habituated, habitual, or used to sexual intercourse continue to appear in appellate judgments and animate the legal discourse in trial courts.

Baxi argues that if the hymen acts as a sign it does so retrospectively after the technique is deployed on the victims body. Thus while the natural state of the hymen is not reliable, it is a technique which allows for a verification of the actual by substituting the penis with two fingers.

The interpretation of the findings of the two-finger test provided in the medico-legal certificate of the victim is transcribed as habituated to sex or used to sex. If a victim is categorised as habituated, it is assumed that she must have experienced regular sexual intercourse and this sexual intercourse must have been consensual.

Baxi quotes a defence lawyer who had been practising criminal law in the trial court as saying that if doctors give a certificate saying no sign of injury and write that she is habituated, the advantage of this goes to the accused.

Thus, medico-legal techniques such as the two-finger test result in symbolic re-rape of victims. The phallocentric law insists on doing mimetically to the victim what the accused rapist did to her, in order to know that rape was real.

Section 354 of the IPC provides for a punishment of up to two years with fine to anyone who assaults or uses criminal force on any woman, intending to outrage her modesty. But the provision does not define modesty.

The Supreme Court, in a recent judgment, defined modesty in this Section as follows: Modesty is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her sari, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object.

As rape is constituted, only penetration is present. In cases where sexual assault does not lead to penetration, the prosecution is inclined to invoke Section 354 against the accused, which results in milder punishment.

Section 511 of the IPC deals with punishment for attempting to commit offences that are punishable with imprisonment for life or other forms of imprisonment. It provides that when an offence is attempted to be committed for which no specific punishment has been provided for in the code, an offender will be punishable with half the longest term of punishment that is prescribed for committing the respective offence.

In other words, a court can convict the accused for attempted rape. Yet courts have in general been reluctant to do so even when the accused has been caught while attempting rape. Ranjana Kaul, a member of the Delhi Commission for Women, points out in an article that they often rely upon the technicality of the absence of penetration to rule out attempt and have invariably imposed on the accused the relatively minor punishment of imprisonment up to two years for molestation.

"The emergence of sexual harassment as a wrong and a form of discrimination against women has been articulated exclusively by the Indian courts, and has not been enacted into any statute," says Ratna Kapur, in her book, Erotic Justice.

The inability of Section 354 of the IPC to address adequately the claims of sexual harassment ultimately led to the filing of a class action petition in 1997 in the Supreme Court. The petition was brought by certain social activists and NGOs to assist in finding suitable methods for the realisation of the true concept of gender equality and to prevent sexual harassment of women in all workplaces through judicial process, to fill the vacuum in the existing legislation.

The Supreme Court held in this case (Visakha v. State of Rajasthan) that sexual harassment is a clear violation of the rights under Articles 14, 15 and 21 of Constitution. One of the logical consequences of such an incident is also the violation of the victims fundamental right under Article 19(1)(g) to practise any profession or to carry out any occupation, trade or business. Such violations attract the remedy under Article 32 for the enforcement of these fundamental rights of women.

The court defined sexual harassment to include such unwelcome sexually determined behaviour (whether directly or by implication) as: a) physical contact and advances; b) a demand or request for sexual favours; c) sexually coloured remarks; d) showing pornography; or e) any other unwelcome physical verbal or non-verbal conduct of a sexual nature.

The court directed all employers or persons in charge of the workplace, whether in the public or private sector, to take appropriate steps to prevent sexual harassment, and create mechanisms for the settlement or prosecution of complaints. It laid down 12 guidelines in this regard and declared that these would constitute the law of the land until the legislature took further action.

Ironically, Parliament took almost 10 years after the Vishaka judgment to prepare a draft Bill on sexual harassment. The draft Bill, the Protection of Women Against Sexual Harassment at Workplace Bill, 2007, is yet to be introduced in Parliament.


1. Ratna Kapur, `Erotic Justice'; Permanent Black, New Delhi, 2005.

2. Kalpana Kannabiran (ed.), `The Violence of Normal Times'; Women Unlimited, New Delhi, 2005.

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