Contradictions and confusion cloud rape laws. The result is miscarriage of justice

Kalpana Sharma
Kalpana Sharma Senior Journalist

The legal system needs a major overhaul if rapists are to be brought to book

IN EARLY October, three events took place. All relate to women and rape. On 5 October, the Central government decided to make an amendment in Section 375 of the Indian Penal Code. At the moment, if a woman under 15 is forced to have sex by her husband, it constitutes rape. If she is over that age, it does not. The government has decided to push the age limit up to 18, which in any case is the legal age for marriage.

Nabbed Policemen escort a Mumbai doctor who allegedly raped a patient in the ICU  
Nabbed Policemen escort a Mumbai doctor who allegedly raped a patient in the ICU
Photo: Deepak Salvi

Around the same time, a 30-year-old woman went to a Puja pandal in Navi Mumbai. She fainted during the festivities and was rushed to a nearby hospital. As she lay unconscious in the ICU, the resident doctor on duty apparently raped her. He has been arrested and the case is being pursued.

In the same week, a fast-track court in Mumbai dismissed a case filed last year by an American woman who had alleged that she had been gang-raped by six young men with whom she had gone out one evening. She was attending a short-term course at the Tata Institute of Social Sciences (TISS). The judge declared her testimony as “unreliable” and released the accused.

A related development to the above three incidents was the release of a report by Human Rights Watch (HRW) titled Dignity on Trial: India’s Need for Sound Standards in Conducting and Interpreting Forensic Examination of Rape Survivors. It exposed the extent to which even today the ‘finger test’ is used to establish whether the raped woman had been “habituated to sexual intercourse”.

All these developments are related because they revolve around that four-letter word: rape. In different ways, they also illustrate the contradictions and the confusion that prevail on rape laws, their implementation and therefore their efficacy.

Take the first, the issue of marital rape, or non-consensual sex within marriage. Talk about it, or write about it, and you will instantly get media-savvy minority groups like Save The Indian Family jumping up and down and shouting that if there is a law on marital rape, Indian men will suffer even more than they already do under laws like Section 498 A and that the ‘Indian family’ will fall apart.

It would seem that these groups, and I presume their members are men, have never heard of domestic violence that includes all forms of physical abuse, including burning the woman who is supposed to be your life partner. That they do not know that for every rape case reported and recorded in the crime statistics, there are hundreds that are never acknowledged. That they do not know that one of the largest incidents of violence against women in India is not what they experience in the public space but within the ostensibly secure reaches of their own homes.

So, publicly we do not discuss marital rape. As a result, the only step the government can think of taking to deal with this crime is to raise the age limit to 18 years. By doing this, it believes it has solved the problem.

If it has recognised the anomaly in the age factor in this ‘exception’ to Section 375, then why can it not understand that the ‘exception’ itself is an anomaly? Why is it a crime only if a woman under 18 is raped by her husband and not a person over that age? In other words, you accept that husbands should not rape their wives, and yet apparently, they can the day the wife turns 18. Does this make any legal sense? To compound the contradictions, the Domestic Violence Act 2005 offers a civil remedy for marital rape and Section 498 A considers “perverse sexual conduct by the husband” as a crime.

The rape cases of Navi Mumbai and TISS, clubbed with the Human Rights Watch report, bring out another set of issues regarding rape. Both these cases caught the attention of the media precisely because they occurred in a large metropolitan city and also because the survivors and the perpetrators were middle-class people. That rape of poor women and minor girls takes place almost every day in cities such as Mumbai is a subject that creates barely a flutter in the media.

But what happens when the case is dismissed? The testimony of the survivor in the TISS case was judged “unreliable” by the court as were the witnesses produced by the prosecution. Hence, the case was dismissed and all the accused released.

IS THIS the full story? When the TISS rape case occurred, the media was literally salivating over it. One newspaper ran the entire FIR filed by the survivor including intimate details about how it was she realised she had been raped. All newspapers published detailed information about the survivor barring her name. Other newspapers gave character certificates to the accused, all “good” boys it would seem, and ran headlines such as, “What was she doing out with six men?” So, even before the case went to court, the survivor’s character was on trial.

For every rape case reported in India, there are hundreds that are never acknowledged

What we do not know yet is whether she and the woman in Navi Mumbai were put through the standard ‘two-finger’ test that continues to be used despite a Supreme Court order that it should be discontinued. What this actually means is that if you are a woman who has been raped in your home or outside, and you work up the courage to go and report to the police, as part of the mandatory medical examination, the doctor on duty will insert two fingers into your vagina to check whether you are “habituated to sexual intercourse” or if your hymen is intact.

Why is this necessary especially when, according to the law, the character of the survivor, and hence a detail such as elasticity of her vagina, is completely immaterial in a rape case? Yet, the reality is that this method continues to be used across the country and one of the reasons, according to the HRW report, is that doctors are still being trained with outdated manuals that recommend this test.

Then, if the case ever makes it to court, you have to contend with a prosecution that might not necessarily be interested in pursuing your case. Ranged against you could be well-paid defence lawyers who can, with ease, pull the prosecution’s case apart if it is not watertight or if it has details such as the outcome of the ‘twofinger’ test. And that is precisely what happens. Nine times out of 10, such cases are dismissed because of lack of evidence, or “unreliable” evidence.

Nine times out of 10, such cases are dismissed due to lack of evidence or ‘unreliable’ proof

AND WHEN you hear that the case has been dismissed, you assume that the survivor lied, and that the charge was false. No one, least of all the newspapers that went to such lengths to pursue the case in the first place, bother to check how or why the case fell apart. It becomes one more statistic in the hands of those who want to beat up every woman who dares to cry “rape” and seek justice.

The government’s decision on amending the section on marital rape is just one more illustration of its refusal to acknowledge the extent of violence women suffer within their homes, or the insurmountable hurdles they face when they try to use laws that contradict each other.


  1. […] Calling women protesting an unsafe society ‘dented and painted’ isn’t just a poor choice of words. It is symptomatic of the same malady that makes our society such a dangerous place for a woman to live: the same backwardness that mandates that a two-finger test  be performed on a rape-victim to ascertain whether she is “habituated to sex”, the same misogyny that led members of parliament in 2010 to reaffirm that marital rape will not be punished. […]

  2. most typical indians are perverts , yes i do agree this law should be amended without any age limit. Rape is a rape even if the perpetrators within family.


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