Section 376(1) of the India Penal Code states that, "Whoever, except in the cases provided by subsection (2), commits rape shall be punished 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 find unless the woman raped is his own wife and is not under twelve (12) years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend two years or with fine or with both;...”. Also according to the Indian Penal Code, a man is said to have committed rape when he has had sexual intercourse with a woman under these conditions:
-Against her will
-With her consent when her consent has been obtained by putting
her or any persons in whom she
is interested in, in fear of death or hurt.
-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.
-With her consent, when at the time of giving such a consent,
by reason of unsoundness of mind or
intoxication on the administration by him personally
or through another of any stupefying or
unwholesome substance, she is unable to understand
the nature of the consequences of that of
which she gives consent.
-With or without consent, when she is under 16 years of age.
Thinking about and looking at what the Indian Penal Code states, at first glance, seems fair and just. Women who are raped are justified in having the rapist being put away for at least seven years and maybe even for life. Whoa, we don't even get that here in America, LIFE! That seems great, but we also have to remember, that this is the Indian Penal Code, not the courts, or police who decide really what happened on a fateful day when a women is stripped of her dignity, pride, and self, when she is raped by a man. The courts have proven themselves to be guilty of biased especially against women, and when they are raped by a man. The accused seems to be getting off easier than the victim. The victim is victimized by the rapist first, then again, and again, and sometimes even again by the courts.
There is a specific case, that I have read about in my research
time and time again, where this unjust for rape victims comes into play.
It is the Mathura Case. This case is about a sixteen year old tribal
girl who was raped by trusted members of all societies, police officers.
Her fearful night started with her brother, who didn't like the idea of
his little sister marrying her boyfriend at the time. In an attempt
to stop this marriage, Mathura's brother filed an abduction report on Mathura's
boyfriend.
Saying that Mathura was kidnapped by her soon to be husband.
Instead of handling the case properly, two predators saw their chance.
Ganpat and Tukaram, who were supposed to be handling the kidnapping case,
betrayed the trust of Mathura and her brother, by calling Mathura to the
police station at night. When Mathura arrived, the two police officers,
using their power,
frightened the young girl into giving consent, and raped her. Mathura
filled a complaint against the officers, and the case came up for hearing
in the sessions court on June 1, 1974. By the time the case was over,
Mathura had been deemed a "liar" and the sessions court ruled that since
she was "habituated to sexual intercourse," her consent was given.
The court said that only sexual intercourse could be proved, not rape.
However, the Bombay High Court overturned the sessions court and ruled
that passive submission consent due to fear, could not be seen as willing
sexual intercourse. Therefore, the high court sentenced Ganpat
and Tudaram to five years and one year of harsh imprisonment. Now,
this all seems great. Mathura finally received justice, after going
through two courts and a rigorous emotional and physical battle, but the
great turns bad. Soon after the
high court found them guilty, the Supreme Court acquitted the policemen.
The Supreme Court ruled that Mathura had not raised an alarm and there
were no visible marks of injury on her body.(Aggrawal,Bengali,Goonesekere,
womenexcel.com). The predators, in the end won, and Mathura never received
justice after all. This case shows how the Indian Penal System is
in
favor of the accused. Two out of the three courts that handled
this case found Mathura guilty of lying, instead of the predators guilty
of rape. It seemed there was enough evidence that Mathura was not
lying. She was a young girl about to be married, to someone she loved
very much. Since sexual intercourse before marriage is a disgrace
in the Indian culture, why would she risk
the embarrassment of not being a virgin on her wedding night?
Why did the police officers call her to the station at night, that doesn't
seem like normal procedure, and it only shows an intent to be doing something
that is wrong. The evidence was there, but only one court saw it,
and that unfortunately was a court that could be overturned by a higher
court.
The Mathura case raised demands for more stringent rape laws,
and brought the government of India to enact a Criminal Law Amendment,
in 1983. Which amended section 376 of the Indian Penal Code and ordered
that the penalty for rape should not be less then seven years. (This
amendment is what the law is now, and the one I presented to you at the
beginning of the
paper).
Even with this amendment, parts of the laws constituting rape
in the Indian Penal Code are still not stringent enough. The part
that bothers me the most is where the code states, “... unless the woman
raped is his own wife and is not under twelve years of age, in which case,
he shall be punished with imprisonment of either description for a term
which may extend to two years or with a fine or both;..” (Indian Penal
Code). This is just crazy, wives do not have the same rights as those
who aren't raped by their husbands, but by another man? They don't
get the same justice of the predator being imprisoned for at least seven
years and maybe even to life, as other women do? This could make
sense, since a woman is considered the males property, in a marriage.
The woman is nothing more than a males slave, however, this is not a law
in the Indian Penal System. This is just old
customs and religious beliefs that should have nothing to do with the
laws of their country. There should only be justice and fairness
for women in the Penal System. This is a simple case of the need
for separation of church and state. Indians beliefs should not interfere
with the production of laws. I think that maybe even the husbands
should be punished more severely, since they are someone in the woman's
life that they love and trust, such as the police officers in the Mathura
case. Also, since
the women live with these men, and are more prone to being violated
again, and again, until they are so mentally, physically, and emotionally
damaged that they are hardly able to function. Of coarse, since most
women have had consentual sex with their husbands before, it does become
hard for these women to prove rape, even here in America it becomes hard.
Which is why there should be a change here and in India. The women
need someone behind them, supporting them, and making them feel as if someone
cares since the person they thought did, is violating them. The abuse
isn't about sex, or love, its about control of the women, and it makes
the women feel like they have no where to go, since their husbands are
raping them, and the Penal System doesn't support them.
To point out another draw back in the Indian Penal System I would
like to introduce you to another case that helps prove the draw back, and
the lack of respect for women in the Indian society. This is the
case of Mohammed Habib vs. State. A High Court bench found a rapist
not guilty of any charges, on the basis that his penis was injury free.
See, they thought that if the victim had resisted at all then there would
have to be injury to his penis. The girl was only seven years old,
and sustained
injuries to her body which consisted of bite marks, and a ruptured
hymen. They did not take these facts into consideration when they
acquitted the rapist. This case was clearly biased to the rapist not the
victim, what kind of animals are these people to think that a little seven
year old girl would consent to something that she probably knew nothing
or very little about. How could she consent to such an act, and why
would she let a stranger touch her, she was scared and helpless, and the
rapist took advantage of that. The rape occurred at a bus stop,
yes a PUBLIC PLACE! And of course, these witnesses showed up in court
and told what they saw, but they did not help the little girl, they just
stood back and watched a predator in action!(womenexcel.com). It
seems the court system is at fault for this one. The courts are guilty
of not realizing that the little girl did prove rape. Where else
would she get a ruptured hymen and bite marks? "Where rape is proved..."
(Indian Penal
Code), this little sentence isn't even a whole one, but it is not followed
in the Indian Court System. In this case, and in the Mathura case
they have found the accused not guilty, when clearly they were. The
courts and the penal system in India need to be sensitive to the victims,
and show the victims of rape that they will give them justice, and find
their rapist guilty upon proven so.
I know that the Indian society has a long way to go in women's
liberation. The women have to get together and recognize that there
are problems and quit being each others worst critics. There has
been women's movements in post colonial India, who recognize that "discrimination
against women is systemic, a product of the country's tradition and dominant
religion, Hinduism." (Bengali). This is great, there needs to be
meetings, discussions, and recgonitions that women are "put on the back
burner" in many aspects of society, and rape laws are one of many.
I urge these women's groups to look at the rape laws seriously and try
to get something done about them. One major activist and recognizes
of this huge problem is Pinki Virani, who wrote the book Aruna's Story
, which is a non-fiction, which tells of a horrid rape of a nurse that
occurred in the hospital she worked in
by a sweeper of the hospital. She says, " I have found that every
time I've raised a question, I've come up against a wall...I've banged
my head against these walls and left blood there, but the laws have not
changed one bit. If you consider the phenomenon of rape step by step,
it is very clear that over 50 percent of rape cases in this country (India)
are not reported for the reason that when a woman gets to a police station
to report it, she is mentally raped all over again”. (femera.com,
womenexcel.com). I hope that one day women of India will
demand their liberation and help Virani to stop banging her head against
walls, and open doors for themselves and their women counterparts.
They need to do it for their daughters, grand daughters, and great grand
daughters, (if not for themselves) so that they will be able to live
in a safe, comfortable, and truthful society that have high regards and
respect for their women.