• The Law Gazette

'Lady Laws' Ignorance towards Crime: Judicial Inexperience murdering Women Rights in Court

Since time immemorial, women have been targeted to a copious amount of sexual crimes, rape being the most common of it all. Rape is one of the atrocious crimes, which affects the overall well being of a woman. A rape victim is in most parts looked at with disgrace and shame in a society. And, all this supposedly aggravates when a victim fails to act in a “responsible manner” after being raped i.e. the victim gets tired and falls asleep.


In the recent case of Sri Rakesh B. v. State of Karnataka, wherein Sri Rakesh B (the Accused) filed a criminal petition seeking advance bail. The petitioner was accused of raping a woman after having falsely promised that he would marry her. After having heard the learned counsel for both the parties, court granted anticipatory bail to the accused, the reasons for which are specified below:


Firstly, Hon’ble Justice Krishna Dixit states that,

The offences alleged against the petitioner...are serious in nature, is arguably true; however seriousness alone is the criteria to deny liberty to the citizen when there is no prima facie case from the side of state police.[i]


Secondly,

The version of the complainant that she was subjected to rape on the false marriage in the given circumstances of the case...; nothing is stated by the complainant as to why she did not approach the court at the earliest point of time when the petitioner was allegedly forcing her for sexual favours.[ii]


Thirdly, He adds,

Nothing is mentioned by the complainant as to why she went to her office at night i.e. 11:00 p.m.; she has also not objected to consuming drinks with the petitioner and allowing him to stay with her till morning; the explanation offered by the complainant that after the perpetration of act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they’re ravished.[iii]


And, lastly,

The version of the complainant... even if it is assumed to be true, there is no explanation offered for not alerting the police or the public about the conduct of the petitioner...[iv]

Not Reasons but A Bunch of ‘Rape Myths’ and Stereotypical Remarks


Now, the fundamental problem that lies here is that these reasons specified above sound more like rape myths and stereotypical notions. Even though facts of the case are not available yet and also, this was a bail order wherein it was not necessary to go into the merits of the case, yet Justice Dixit has not failed to express his reservations about genuineness of complaint filed by the victim. In this seven pages long order, Justice Dixit has raised concerns over how the victim did not react in a manner in which she should have. Going out with someone late at night and consuming drinks with that person, does not in any way determines her consent. Also, Justice Dixit raising doubts over the complaint because victim did not alert the police at the earliest is groundless. It is a well known fact that in a country like India, rape victims are already under a lot of pressure, their whole well being is affected and in situations like these one needs time to process.


What court has failed to realize that every rape victim reacts differently, every victim’s method of processing the violation is different. There cannot be a set way of reacting to such a situation. The problem is, rape victims are expected to be devastated after perpetration of act, but they’re also expected to confident enough to instantly file a complaint and yet, if the victims act too confident they are not trusted because how could a rape victim be in such a confident state to comprehend things post getting raped. These stereotypical expectations and rape myths actually make it more difficult for rape victims to stand up for their own right. Furthermore, the particular remark “unbecoming of an Indian woman” is a misogynistic and stereotypical remark that actually categorises the expected behaviour of Indian women rape survivors and survivors of other nationalities. It is basically an insult to every woman existing.


RIGID IMAGE OF A STEREOTYPICAL RAPE VICTIM

Rape victims in Indian courts are always looked at with some prejudice. Rape myths are always stereotyped or are colored with false beliefs of rape, rape victims or rapists, such as how a rape victim should have reacted[v], what should she have done after being raped, etc. It is also observed that the judges and the Indian court look at a rape victim, having an active sexual life prior to the incident, with a different eye. Totally unrelated and often disturbing questions regarding the virginity, drinking habits and victim’s attire are always put forth to the survivors. Such questions, though necessary for the preliminary investigation, outrages a woman’s modesty in a Court where she had only come to acquire justice for the atrocious crime committed against her.


CASES STUDIES

There are a plethora of judgments where the Indian Courts have stripped down a woman of her modesty just because she “according to their stereotypical standards” doesn’t pass the test of being an “Indian women”. In the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat [vi]the Supreme Court made a checklist of what supposed qualities of an Indian woman which will make her testimony more reliable. Accordingly an India women is one who is chaste, monogamous, dresses properly without showing too much skin and generally is shy and keeps to herself most of the times. The question of importance here is that should the so called definition of “Indian woman” be always based on unreasonable and extremely unfair standards of patriarchal structure of Indian society?


In the well-known case of Mukesh & Anr. v. NCT Delhi, (Nirbhaya Rape Case [vii]) the advocate defending the convicts made public statements of how a woman is not supposed to be roaming around with her paramour at 11 in the night and therefore, whatever happened to the deceased lies on her. In the famous Mathura rape case[viii],the Supreme Court acquitted the accused because the victim had no visible signs of injury on her body and she failed to raise an alarm. This further goes on to show that in the court’s view, an Indian woman should resist a rape at all costs, even if she is threatened with her life or he resistance may cause her serious bodily injuries, because apparently non-resistance on her part would mean the act was consensual.[ix]


CONCLUSION

The current Karnataka High Court incident doesn’t really come as a shock to us because the morality and the character of a rape victim, even if completely unnecessary, are always touched upon in a courtroom to make the story presented by the victim less credible. As if proving all this against a woman will somehow undo the crime! It is observed that the judges and the lawyers alike have created a very stereotypical image of how a rape victim should act and be, they exhibit deep seated sexism and are often seen using improper language which outrages the modesty of a victim in court proceedings. Court should realize that they are supposed to give reasons and not ‘rape myths’.


ENDNOTES

[i] p.3, http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/333895/1/CRLP2427-20-22-06-2020.pdf.

[ii] Ibid

[iii] Ibid

[iv] Ibid

[v] Jennifer Temkin & Barbara Krahe, Sexual Assault & The Justice Gap: Question Of Attitude 32 (Hart Publishers, Oxford, 2013). [vi] (1983) 3 S.C.C. 217.

[vii] (2017) 6 S.C.C. 1.

[viii] Tukaram & Anr. v. State of Maharashtra (1979) 2 S.C.C. 143.

[ix] Ibid.


ABOUT THE AUTHOR This blog has been authored by Muskaan Koul who is a 3rd Year B.A., LL.B. (Hons.) student at Rajiv Gandhi National University of Law, Patiala & Purnima Sharma who is a 4th Year B.A., LL.B. (Hons.) student at Himachal Pradesh National Law University, Shimla.


[PUBLICATION NO. TLG_BLOG_20_3204]

​​​​© 2020 | The Law Gazette | All Rights Reserved | Terms & Conditions

  • LinkedIn
  • Instagram
  • whatsapp
  • YouTube
  • Facebook