Delhi High Court has curtailed women’s access to justice by terming rape laws as weapons of vendetta

Source – firstpost.com

The judiciary isn’t quite helping the cause of women’s rights in India. On 31 July, the Delhi High Court, while upholding the acquittal of a government employee in a rape case, remarked that “women use law as weapon for vengeance and personal vendetta and tend to convert consensual physical relations as an incident of rape”.

The 29-year-old petitioner, whose plea was rejected by Justice Pratibha Rani, had recently filed a domestic violence case against her husband and was seeking prosecution in a case lodged before marrying him in 2015, where she had charged him with raping her.

In the 2015 case, the petitioner had accused the man she was living with of raping her on the false promise of marriage and had filed an FIR under Sections 328 and 376 of the Indian Penal Code. However, during the case proceedings, the woman confessed that the rape case was filed because of “some misunderstanding”.

Thereafter, a case was filed by her for quashing the FIR, which stated that their physical relationship was consensual and that a marriage had taken place between her and the accused. For the lack of incriminating evidence and depositions of her being raped by the accused, the trial court acquitted the accused.

The petitioner, then, appealed to the high court when the trial court had acquitted him in March 2016. In the high court, the petitioner stated that her statement before the trial court was made because she was pressurised by the accused to do so. Justice Rani, however, dismissed this appeal stating that:

“The petitioner, in this case, is a matured lady who was aged about 27 years at the time of registration of FIR. She was having friendly relations with the respondent No 2 since the year 2013 and as per the FIR she had given consent to have physical intimacy on the promise of respondent No 2 to marry her,”

“In the leave petition the factum of marriage on 29 November, 2015, between the parties is admitted. Thus, the petitioner cannot claim that she was misled to make a statement before the Court on 21 March, 2016, which led to the acquittal of the accused.”

Justice Rani also stated that women tend “to convert consensual acts as incidents of rape, defeating the very purpose of the provision. This requires a clear demarcation between rape and consensual sex, especially in the case where complaint is that consent had been given on promise of marriage”. This case is a clear example of the judiciary’s relationship with women’s rights, and its focus on gender-based violence.

In addition to this, a larger problem is that it would be assumed that since a female judge was presiding over this case, there would be a debate on the complicated issues involved: the concept of ‘exacted consent’ (where a woman is coaxed and coerced into sexual intercourse with a promise of marriage) by the accused, the dangers of manipulation of the petitioner’s statement by the accused’s persuasion and the problematic lens of looking at certain rape cases as “false”.

However, Justice Rani is a product of structural patriarchy and no amount of women on the benches of the judiciary would solve this problem internalised misogyny while adjudicating rape cases.

The issue with rape jurisprudence within the IPC is that unlike other criminal cases, a trial of rape does not mandate an eye witness or any circumstantial evidence. The victim’s body is often considered to be the focal point of the case. Therefore, when she herself retracts her statement or like in the present case, changes her statement due to “some misunderstanding”, the trial court, because of the lack of factual evidence, is bound to acquit the accused and dismiss the case.

Several times, this retraction of statement is because the victim has been coerced by her family members or the accused himself, often known to the victim, to save their “honour”. These are the cases that come to be touted as “false rape cases” in the judiciary. In such “false rape cases”, a deeper debate is needed to understand the nuances of consent, sexual freedom and the effect of patriarchy on how rape victims may view themselves after the incident(s).

However, instead of dealing with such intricate issues that generally situate themselves in every rape case, Justice Rani went on to shame and victim-blame the petitioner, and in effect, rape survivors in general. As a woman on the bench that could change the course of rape jurisprudence in the country, she chose the easier path and dismissed the appeal and depleted further the access to justice of the petitioner.

Moreover, what this judgment also did was that it gave a clear message to women in the country, subtly stating that the judiciary is not the repository of rights when it comes to violations against women; that they could not approach formal systems of justice for remedies.

This present case, coupled with the recent Supreme Court guidelines for cases registered under section 498A, is a reminder that there is perhaps no relief for women who are battling the law. The benches of the Judiciary will continue to dismiss the plea of raped, battered and harassed women all the time because, according to them, the objective of the law is not to protect but to use it as a weapon for personal vendetta.