The infamous case of Tukaram and Another v.

State of Maharashtra, more commonly known as

the Mathura Rape Case, sparked off vehemence and uncurbed conflicts, leading to radical
changes in the sphere of rape laws governing India. This case witnessed the problem of custodial
rape of a young girl named Mathura. The Judgment of this case delivered by Justice Jaswant
Singh, Kailasam and Koshal were highly condemned and criticized for it is logical, legal and
linguistic fallacies along with its ambiguous and sexist tone. This case gained widespread
recognition after four distinguished professors:

1. Upendra Baxi
2. Raghunath Kelkar
3. Lotika Sarkar, and
4. Vasudha Dhagamwar wrote an open letter to the Chief Justice of India to have the
case reheard.
5. Mathura, a young orphan, lived with her brother Gama. She worked as a laborer at the
house of Nushi. During the course of employment, she developed sexual relations with
Ashok, the son of Nushi’s sister. Thereafter, they decided to get married. On the basis of
a report filed by Gama on March 26, 1972, stating that Mathura had been kidnapped, all
the concerned parties including Ashok, Nushi and other relatives were brought before the
police station.

6. After their statements were recorded, everyone began walking out at about 10:30 pm. The
first appellant Ganpat asked Mathura to wait inside the police station. After closing the
doors and turning off the lights inside, he took her up to the washroom and raped her in
spite of her resisting.

7. After he was done, the second appellant Tukaram came and fondled with her private
parts. He tried to rape her too but failed, as he was heavily intoxicated.

8. After being reunited with her family and friends, Mathura narrated this incident to them.
On being medically examined it was asserted that Mathura was between the age of 14-16
years and her hymen revealed old ruptures but there was no injury on her body.
9. She was examined by Dr. Shastrakar on March 27, on whose advice an FIR for the same
was filed. After a long battle, The Supreme Court acquitted the appellants in 1979.

10. The Sessions Judge acquitted the accused, as he believed that this was not a case of rape
but one of “consensual sexual intercourse”. The perversity of his logic is evident when he
implies that Mathura being “habitual to sex” might have invited Ganpat to satisfy her
sexual needs and thus her consent was voluntary.
11. He further used this line of argument to justify the presence of semen on her clothes to
have come from her act of having sexual intercourse with some person other than Ganpat.
12. By this statement, the Judge is implying that Mathura was so eager that she had sexual
intercourse with ‘someone’ between the hours of this incident and her medical
examination.
13. However, in justifying the semen on Ganpat’s clothes he said it was due to “nightly
discharges”. It is enigmatic as to why the Court had such double standards based on
gender roles.
14. As per Section 375(6) of the Indian Penal Code, sexual intercourse with a woman below
the age of 16 whether with or without her consent qualifies as rape.[2]
15. Even after Dr. Shastrakar presented evidence that Mathura was between the ages of 14-
16, the Sessions Judge held that the evidence determining Mathura’s age was inadequate.
16. He further held that in order to sound “virtuous before Ashok” Mathura fabricated a story
of being raped. The sexist tone in this judgment is startling as the Judge assigns a specific
role to Mathura by implying that she needs to concoct a story in order to prove her
chastity to her lover. In his words Mathura was “a shocking liar whose testimony was
riddled with falsehood and improbabilities.”
17. Bombay High Court
18. The Bombay High Court rightly distinguished between passive submission and consent.
It held that since the accused were strangers to Mathura and her brother had just filed a
case in the same police station, the chances of her making advances on them was highly
improbable.
19. Further, they were in a position of authority and any resistance to them could prove
detrimental to her or her brother.
20. This is a clear case of passive submission caused by the threat of injury. The fact that the
constables confined her to the police station along with her act of instantly narrating the
incident to her family shows a clear lack of consent.
21. The Court again rightly held that the “absence of semen on the vaginal smears and pubic
hair” was because of the fact that she was examined 20 hours after the incident and it is
presumably for her to have taken a shower in the meantime.
22. Although the High Court rightly convicted the accused there were some parts of the
judgment that were paradoxical.
23. Firstly, the Court agreed with the Sessions Judge on the account of Mathura’s age. If both
the Courts were confident that Dr. Shastrakar’s examination was incorrect then why
didn’t they direct any further examination into her age?
24. Secondly, while quashing the acquittal of the accused, the High Court stated that these
two “gentlemen” were absolute strangers to Mathura and it is extremely unlikely that
she’d approach them to satisfy her sexual needs. It is perplexing that while convicting the
accused for rape, this Court has referred to them as gentlemen.
25. Supreme Court
26. Finally in 1979, the Supreme Court overturned the conviction of the High Court and
acquitted the accused. The Supreme Court agreed with the Sessions Judge that this was a
case of consensual sexual intercourse. On this point the Supreme Court further added that
since “no marks of injury” were found on Mathura’s body there was “no resistance” on
her part and since she did not “raise an alarm” for help she “consented to sex.”
27. Firstly, it is astonishing that this Court has equated the lack of resistance to consent.
28. Even if Mathura tried to resist she would be powerless in front of two well-built, strong
constables and thus impossible for “marks of injury” to be carved onto her body.
29. While the Court read into Section 375(3) of the IPC to hold that her consent was not
obtained by putting her in fear as she didn’t object when she was taken away from her
family, it excluded Section 375(2), which states that rape is sexual intercourse with a
woman without her consent.[3]
30. Secondly, it is questionable as to how the Courts are certain that Mathura did not shout
for help.
31. The doors were locked all throughout when Ganpat took Mathura up to the washroom to
rape her.
32. Even if she did cry out for help, it’s very likely that she might not have been heard. At
this stage, it is pertinent to question this Court as to what their judgment would be if the
victim in this case were verbally handicap?
33. The Supreme Court further agreed with the Sessions Judge that Mathura was “habitual to
sex” and this entire story was concocted to sound “virtuous in front of Ashok”.
34. In this regard, two fallacies commonly used in English language have been committed,
‘Argumentum ad Hominem’ and ‘Hasty Generalization’.
35. This essentially means that rather than deciding this case on it merits, the Court
constantly attacked the character of the victim and came to conclusions without any link
to its premise.[4]
36. It believed that Mathura was so promiscuous that she could not let go of any chance of
having sexual intercourse even when her sibling Gama, employer Nushi and beloved
Ashok were waiting for her right outside the police station.
37. Mathura’s mistake to point out the exact appellant who had raped her further worked
against her because the Court stated that if she could go against her initial testimony by
changing the accused from Tukaram to Ganpat, it was possible that she had lied about
everything else too.
38. No regard was paid to the fact that these men were strangers to her and she had never
seen them before this incident or that it might be difficult for her to see their faces clearly
as the lights were switched off.
39. The fact is Tukaram remained a spectator while Ganpat was raping her as though it was a
pornographic film or that he was drunk on duty was also considered extraneous in
deciding the fate of this young girl.[5]
40. The Supreme Court acquitted both the accused stating that this alleged intercourse was a
“peaceful affair”.

41. Aftermath
42. This case stirred up great passions and resentment amongst people in the society. A law
more sensitive to the feelings of the victims had to be drafted, that protected their human
rights and dignity.
43. This resulted in the Criminal Law Amendment Act being passed in 1983. This act
amended Section 114(A) of the Indian Evidence Act, which stated that if the victim does
 not consent to sexual intercourse then the Court would presume that she did not consent
[6].
44. Section 376 of the IPC was also amended, making custodial rape an offense punishable
with not less than 7 years imprisonment. This section shifted the burden of proof from the
victim to the offender, once sexual intercourse is established.[7]
45. The amendment also banned publication of victims’ identities and held that rape trials
should be conducted as in-camera proceedings.
46. Even though the Parliament has amended rape laws in order to serve justice, judicial
interpretation of these laws has done the exact opposite.
47. While there are several judgments post the 1983 Amendment Act that have been
successful in serving justice to the victims, there are still an equal number that are
perversely drafted like the Mathura Rape Case.
48. Cases
49. In Mohd. Habib v. State (1989) [8], the Delhi High Court acquitted the accused for the
rape of Aruna Kumari. The court again equated no “marks of injury” on his genital parts
to lack of resistance by the victim. The facts that Aruna was between 7-10 years, her
hymen was ruptured, there were bite marks on her body and there was an eyewitness to
this entire incident was also considered inconsequential to this Court.
50. In Bhanwari Devi (1992), the court held that the accused couldn’t be held guilty of rape
even after the semen of five different men were found in her vaginal swab and on her
clothes since the victim was a Dalit while the accused was from an upper caste and would
“not stoop so low to have sexual relations with a Dalit”[9]

51. Conclusion
52. Even though rape laws in India have been reformed over time, the occurrences of rape
keep increasing every year. Besides causing tremendous physical injury to the victim, this
crime has devastating psychological effects as well such as PTSD, depression,
flashbacks, sleep disorders and more. One step towards elimination of this crime would
be to improve safety and security for women in the State. More than stringent laws to
penalize the wrongdoers, it is the attitude and mentality of men, like the Supreme Court
Judges in the Mathura Rape Case that requires reformation.
53. “They are all innocent until proven guilty. But not me. I am a liar until I am proven
honest.” -Louise O’Neill
 54. References
55. [1] Tukaram v. State of Maharashtra, (1979) 2 SCC 143
56. [2] Section 375(6), Indian Penal Code, 1860
57. [3] Section 375(2) and 375(3), Indian Penal Code, 1860
58. [4] Logical Fallacies, Available at: https://www.learn.lexiconic.net/fallacies/index.htm
[Accessed 15 Oct. 2017].
59. [5] Dube, D. (2008), Rape laws in India, LexisNexis Butterworths India, pp.88-98
60. [6] Section 114(A), Indian Evidence Act, 1872
61. [7] Section 376, Indian Penal Code, 1860
62. [8] Mohd. Habib v. State, 1989 CriLJ 137, Paragraph 2, 3, 6, 16

Mathura was a young orphan tribal girl living with one of her two brothers.[3] She was
an Adivasi. The incident is suspected to have taken place on 26 March 1972, she was between 14
and 16 years old at that time.[3] Mathura occasionally worked as a domestic helper with a woman
named Nushi.[4] She met Nushi's nephew named Ashok who wanted to marry her, but her brother
did not agree to the union and went to the local police station to lodge a complaint claiming that
his sister, a minor, was being kidnapped by Ashok and his family members. After receiving the
complaint, the police authority brought Ashok and his family members to the police station.
Following general investigation, Mathura, her brother, Ashok, and his family members were
permitted to go back home. However, as they were leaving, Mathura was asked to stay behind
while her relatives were asked to wait outside.[5]Mathura was then raped by the two policemen.
When her relatives and the assembled crowd threatened to burn down the police chowky, the two
accused policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama (legal recording
of evidence).[6][7]

The case[edit]
The case came for hearing on 1 June 1974 in the sessions court. The judgment returned found the
defendants not guilty. It was stated that because Mathura was 'habituated to sexual intercourse',
her consent was voluntary; under the circumstances only sexual intercourse could be proved and
not rape.[6][7]
On appeal, the Nagpur bench of the Bombay High Court set aside the judgment of the Sessions
Court, and sentenced the accused to one and five years imprisonment respectively. The Court
held that passive submission due to fear induced by serious threats could not be construed as
consent or willing sexual intercourse.[6]
However, in September 1979 the Supreme Court of India justices Jaswant Singh, Kailasam and
Koshal in their judgement on Tukaram vs. State of Maharashtra reversed the High Court ruling
and again acquitted the accused policemen. The Supreme Court held that Mathura had raised no
alarm; and also that there were no visible marks of injury on her body thereby suggesting no
struggle and therefore no rape.[6] The judge noted, "Because she was used to sex, she might have
incited the cops (they were drunk on duty) to have intercourse with her".[8][9]
Aftermath[edit]
In September 1979, only a few days after the verdict was pronounced, law professors Upendra
Baxi, Raghunath Kelkar and Lotika Sarkar of Delhi University and Vasudha Dhagamwar of
Pune wrote an open letter to the Supreme Court, protesting the concept of consent in the
judgment. "Consent involves submission, but the converse is not necessarily true...From the facts
of case, all that is established is submission, and not consent...Is the taboo against pre-marital sex
so strong as to provide a license to Indian police to rape young girls."[8] Spontaneous widespread
protests and demonstrations followed by women's organisations who demanded a review of
judgement, receiving extensive media coverage.[10]
A number of women's group were formed as a direct response to the judgment,
including Saheli in Delhi, and prior to that in January 1980, Lotika Sarkar, was also involved in
the formation of the first feminist group in India against rape, "Forum Against Rape", later
renamed "Forum Against Oppression of Women" (FAOW). A national conference was organised
by FAOW which started the debate for legal reforms. Issues of violence against women and the
difficulty of seeking judicial help in sexual crimes was highlighted by the women's
movement.[11][12][13]
Following the same tradition, on the International Women's day women from various states
including Delhi, Mumbai, Hyderabad and Nagpur took to the streets. Seema Sakhare, the
founder of the first organizations in India that worked on the issue of violence against women.[3]
However, the courts ruled that there was no locus standi (legal standing) in the case to rule in
favour to Mathura.[14] Eventually this led to Government of India amending the rape law.[6][13]

Legal reform[edit]
The Criminal Law Amendment Act 1983 (No. 43) made a statutory provision in the face of
Section 114 (A) of the Evidence Act made 25 December 1983, which states that if the victim
says that she did not consent to the sexual intercourse, the Court shall presume that she did not
consent as a rebuttable presumption.[6][15][16] New laws were also enacted following the incident.
The Section 376 (punishment for rape) of the Indian Penal Code underwent a change with the
enactment and addition of Section 376(A), Section 376(B),Section 376(C), Section 376(D),
which made custodial rape punishable.[17] Besides defining custodial rape, the amendment
shifted the burden of proof from the accuser to the accused once intercourse was established; it
also added provisions for in-camera trials, the prohibition on the victim identity disclosure, and
tougher sentences.[11][18]

Legacy[edit]
The case is seen as turning point in women right's movement in India, as it led to just greater
awareness of women's legal rights issue, oppression, and patriarchal mindsets. A number of
women's organisations soon came forth across India. Previously, rape misjudgments or acquittals
would go unnoticed, but in the following years, women's movement against rape gathered force
and organisation supporting rape victims and women's rights advocates came to the fore.[11][13][19]

See also[edit]

 Rape in India
 Anti-rape movement

References[edit]

1. ^ "Older friends". Mid-day. 13 January 2013. Retrieved 8 June 2013.

2. ^ B. Suguna (1 January 2009). Women S Movements. Discovery Publishing House.
pp. 66–. ISBN 978-81-8356-425-0. Retrieved 9 June 2013.
3. ^ Jump up to:a b c Basu, Moni (8 November 2013). "The Girl Whose Rape Changed A
Country". CNN. Retrieved 7 December 2013.
4. ^ Basu, Moni (8 November 2013). "The Girl Whose Rape Changed A Country". CNN.
Archived from the original on 5 December 2013. Retrieved 7 December 2013.
5. ^ Maya Majumdar (1 January 2005). Encyclopaedia of Gender Equality Through
Women Empowerment. Sarup & Sons. pp. 297–. ISBN 978-81-7625-548-6. Retrieved 9
June2013.
6. ^ Jump up to:a b c d e f Indira, Jaising (20 January 1999). "Slamming the doors of justice
on women". The Indian Express. Archived from the original on 2 June 2012. Retrieved 2
June 2012.
7. ^ Jump up to:a b Kamini Jaiswal (12 October 2008). "Mathura rape case". The Sunday
Indian. Retrieved 5 June 2013.
8. ^ Jump up to:a b Khullar, p. 132
9. ^ "Remember Mathura?". Hindustan Times. 26 December 2012. Retrieved 5 June 2013.
10. ^ Michael T. Kaufman (20 April 1980). "Rape Case Reversal Infuriates Indian Women's
Groups; Assaults on Women Reported 'I was Appailed' Class and Sexist Prejudice". The
New York Times. Retrieved 6 June 2013.
11. ^ Jump up to:a b c Epp, p. 105
12. ^ "In memoriam: Lotika Sarkar 1923 – 2013". feministsindia.com. Retrieved 4
June 2013.
13. ^ Jump up to:a b c Gamble, p. 59
14. ^ Khullar, p. 133
15. ^ "Rape law, a double-edged sword in India". CNN-IBN. 18 June 2009. Retrieved 6
June2013.
16. ^ "Criminal Law (Second Amendment) Act. 46 of 1983, 113 (A) and 114 (A)" (PDF).
Law Commission of India. p. 265. Retrieved 13 June 2013.
17. ^ Jain, p. 12
18. ^ Laxmi Murthy (8 June 2013). "From Mathura to Bhanwari". Economic and Political
Weekly. Retrieved 6 June 2013.
19. ^ Epp, p. 106

Bibliography[edit]

 Mala Khullar; Ihwa Yŏja Taehakkyo (2005). Writing the Women's Movement: A Reader.
Zubaan. ISBN 8186706992.
 Sarah Gamble (ed.) (2001). The Routledge Companion to Feminism and Postfeminism.
Routledge. ISBN 0415243106.
 Charles R. Epp (1998). The Rights Revolution: Lawyers, Activists, and Supreme Courts in
Comparative Perspective. University of Chicago Press. ISBN 0226211622.
 Kamlesh Jain (2008). In Case of Rape. Rajkamal Prakashan. ISBN 818361194X.
 pe laws in India
 (Written especially for this website)
 -Dr. Anil Aggrawal

 When Mathura, a minor and orphan Harijan girl, filed a case against Ganpat, a police
constable
for raping her, little did she realize that she was undertaking an exercise in futility. As far
as
her innocent little mind worked, the facts of the case were very clear and indisputable.
She
had a boy friend and wanted to marry him. Her brother, who was against this marriage,
lodged
an abduction report with the police. Rather than do anything about the case, the police
constable Ganpat saw his chance, summoned her to the police station at night, terrified
her into
submission and quenched his lust on her. Having thus satisfied his lust, he let her go.
 This case occurred in 1978, when the rape laws in our country were heavily skewed in
favor
of the rapist. The most controversial question was of course regarding the consent of the
female. In most cases, the victim found it impossible to prove that she had not consented
to the
act.
 The same happened in Mathura's case. The Supreme Court ruled (Tukaram Vs. State of
Maharashtra, AIR 1979 SC 185; (1979) 2SCC 143; 1978 CrLJ 1864; 1979 SCC 143),
that there were no injuries on the person of the girl, which meant that she did not put up
resistance and that the incidence was a "peaceful affair"! Ganpat, who in similar
circumstances
in a Western country would have gone behind bars for life, was acquitted.
 So much for women's rights and women's liberation in our country. Nevertheless, the
case
stirred up a hornet's nest and the government was forced to wake up from its long
slumber. In
1983, a comprehensive change was made in the rape laws, yet it was not enough to clip
the
dangerously overgrown claws of the rapists. Most women activists and lawyers feel that
we
are still miles behind equivalent laws compared to our western counterparts.
 Section 375 of the Indian Penal Code (IPC) defines rape. Rape (from Latin rapio, to
carry
off, to overcome) means an unlawful intercourse done by a man with a woman without
her
valid consent. In certain cases, when consent is taken by fraudulent means or by
 misrepresentation, the act is still ûquite rightly- taken as rape. A rapist, for instance can
put a
gun at his victim's head and obtain consent. Still better, he could ask one of his goons to
put a
gun on her husband's head and tell her that the gun would go off if she did not relent.
Consent
could also be had fraudulently by giving her intoxicating or stupefying substances (
Cannabis
is just one of the many stupefying drugs which can be given to achieve this). Another
way of
getting consent by fraudulent means is by impersonation. A rapist may slip into the bed
of an
unsuspecting woman in the thick of night, when the woman, taking him to be her
husband not
only does not resist, but actively participates in the act. These cases are rare but do occur
occasionally. Finally the consent of a woman of unsound mind and of a girl below 16 are
not
taken to be lawful consent because it is presumed that these women are not in a position
to
truly understand the nature and gravity of sexual intercourse.
 This was the position before 1983 and on the face of it the provisions sound fair enough.
Yet
Ganpat managed to wriggle out of the legal consequences of his act. If a police officer
apprehends a person illegally and insists he will not free the man until his wife submits to
the
officer, how can one prove rape if she does so? No person in his right mind would
imagine
that such an act was not rape, yet the law would not recognize it so before 1983. The
women
had to prove she had not consented. The rapist was considered innocent unless proved
otherwise.
 The change in rape laws in 1983 improved the situation to a great extent. Among other
things,
the punishment for rape was made more severe. Before, the punishment prescribed under
Section 376 of the IPC provided for a maximum sentence of life imprisonment but there
was
no minimum limit. Thus, in theory a rapist could get away with a sentence of say, just
one
month.
 In 1983 although the legislature failed to increase the maximum sentence to capital
punishment as was vehemently demanded by women's organizations, it prescribed a
minimum
sentence of seven years' imprisonment. Every rapist on being found guilty thereafter bad
to
undergo a minimum imprisonment of seven years. Besides, an important provision -
Section
 376(2) - was added to the IPC. This section introduced the concept of some special kinds
of
rape and prescribed a minimum of ten years for these cases. Furthermore, in such cases,
the
imprisonment had to be of a rigorous nature only. These included rape by a police officer
within the premises of a police station; rape by a public servant of his junior while taking
advantage of his official position; rape by an official in a jail or remand home of an
inmate;
rape by someone on the staff of a hospital of a woman in the hospital; rape of a pregnant
women; rape of a, girl under 12 years of age end gang rape.
 Rape by persons who are in a position of authority e.g. police officers, jail wardens,
hospital
staff etc., is generally termed custodial rape. Gang rape is a situation when a woman is
raped
by one or more than one person from amongst a group of persons acting in furtherance of
their
common intention. The important thing is that in such situations each of the persons
within the
group will be deemed to have raped the women even if each one of them did not actually
have sexual intercourse with her. Thus if five men catch hold of a woman and only one
ravishes her in order to, for instance, humiliate her husband because of some old
vendetta, all
the five men will be imprisoned for a minimum of ten years.
 It is very difficult for the victim to prove absence of consent especially in cases of
custodial
rape, so a special section was added to the Indian Evidence Act (IEA). According to the
new
provision - Section 114A of the IEA - in cases of custodial rape, gang rape and rape of a
pregnant woman, if the victim states in court that she did not consent, then the court shall
presume that she did not consent and the burden of proving consent shell shift to the
accused.
This was a major reform in the law.
 The legislature did not stop at this. There can be cases when a person in authority can get
a
women to have intercourse with him "willingly" by offering handsome rewards in return.
A
superintendent of a jail can offer better living conditions to a woman prisoner if she
"willingly"
submits to him. Such cases will not amount to rape; nevertheless they do signify abuse of
official position. For such cases four special provisions - 376A, 376B, 376C and 376D -
were
added to the IPC and a, punishment of five years' imprisonment provided. In effect, if a
person in authority has had sexual intercourse with a women in his custody, he will firstly
have
to prove that the women in question had consented. If he can't prove this he will be guilty
of
 custodial rape and shall have to undergo a minimum rigorous imprisonment often years.
Secondly, even if he is able to prove that the women did consent, he may not be charged
with
custodial rape yet he can be imprisoned for five years under Sections 376B, 376C and
376D.
 It would seem that enough changes have been made in the rape laws to bring it on par
with
that of Western countries. However, there are still some glaring deficiencies. For one
thing,
the law does not provide for separate and speedy trials for heinous crimes such as child
rape.
The definition of rape too is finite restrictive. For raping a women, penile penetration
must be
proved. One can ravish a women equally or much more violently by shoving, for
example, an
iron rod into her private parts. Yet such a man would not be held guilty of rape. Several
such
cases have indeed come to light.
 But the worst thing is the continued existence of Section 155(4) of the IEA, which
provides
that when amen is prosecuted for rape and if is shown that the woman in question is of
immoral character then her evidence will not be taken into account. It may be argued that
this
provision offers protection to the accused against false allegations of a women whose
character is suspect. Yet consider Section 54 of the same Act. Among other things it says
that
in cases of rape, the fact that the accused person is a bad character is irrelevant. In effect,
for
the purpose of proving that a men did rape the prosecutrix, it is irrelevant to show that he
has a
bad character. If the bad character of the prosecutrix is considered in cases of rape, why
not
the bad character of the accused too?
 In fact, it can be argued that these provisions are unconstitutional as they contravene the
equality clause under Article 14 of the Indian Constitution. Is it not highly unfair to
apply
different standards to the accused and the complainant only in rape cases?
 (Dr. Anil Aggrawal is a professor of Forensic Medicine at the Maulana Azad
Medical College, New Delhi-110 002. He specializes in detection and
investigation of sex crimes and in sex laws around the world. His E-mail is
dr_anil@hotmail.com and his Website address is
http://members.tripod.com/~Prof_Anil_Aggrawal/index.htm)