From observation on marital rapes to what constitutes aggravated sexual assault under the POCSO Act, courts across India have made statements that have angered women and child right activists as well as people on social media. Here are a few such instances when rulings fell short of expectations
Representational image. PTI
Kozhikode sessions court in Kerala on Wednesday granted bail to author and social activist Civic Chandran in a sexual harassment case, observing that the complaint is invalid when the woman (complainant) was wearing “sexually provocative dress”.
Chandran had also produced the photographs of the woman with the bail application.
The court said as per the photographs furnished by the accused reveal that the complainant herself was exposing to dresses which are having some sexual provocation. “So Section 354A will not prima facie stand against the accused,” the judicial body added.
The court also expressed disbelief that the 74-year-old physically disabled accused could forcefully put the complainant in his lap and press her breasts.
The controversial judgment attracted criticism online as social media users asked what defines a provocative dress.
Let’s take a look at some of the controversial statements made by courts in India:
Sexual assault under POCSO needs skin to skin contact
A Bombay High Court judge, Pushpa Ganediwala, courted controversy over a series of judgments on child sexual abuse and received nationwide criticism from women and child rights activists for her interpretation of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act.
In January 2021, the single-judge bench of Justice Ganediwal observed that there should be “skin-to-skin contact with sexual intent” in order to be considered as sexual assault. Ganediwala’s ruling also said that ‘mere groping’ will not fall under sexual assault.
Ganediwala further ruled that “mere touching the chest of the minor will not amount to sexual assault” unless the accused removes clothes of the victim or slid hands inside the garments, making it a physical contact, as per a report by Outlook.The single-judge bench of Justice Pushpa Ganediwala acquitted the man while pronouncing the ruling.Oral sex doesn’t fall under ‘aggravated sexual assault’ in POCSO
In November 2021, the Allahabad High Court reduced the jail sentence of a man convicted of sexually assaulting a 10-year-old boy, saying that oral sex does not fall in the category of “aggravated sexual assault or sexual assault” as per the provisions of the POCSO Act (Protection of Children from Sexual Offences Act).Justice Anil Kumar Ojha, in his order, stated: “From the perusal of the provisions of the POCSO Act, it is clear that the offence committed by the appellant neither falls under Section 5/6 of the POCSO Act nor under Section 9(M) of the POCSO Act because there is penetrative sexual assault in the present case as the appellant has put his penis into the mouth of the victim. Putting penis into the mouth does not fall in the category of aggravated sexual assault or sexual assault. It comes into the category of penetrative sexual assault which is punishable under Section 4 of the POCSO Act.”While Section 4 of the POCSO Act deals with penetrative sexual assault, Sections 5 and 6 are about “aggravated penetrative sexual assault”.Courts on marital rape
In May 2022, the Delhi HC delivered split verdict on criminalisation of marital rape. Justice Hari Shankar ruled against striking down of the marital rape exception and said: “If the wife refuses & the husband, nonetheless, has sex with her, howsoever one may disapprove, it can’t be equated with the act of ravishing by a stranger. Nor can the impact on the wife, be equated with the impact of a woman who is raped by a stranger.”
In August 2021, the Chhattisgarh High Court discharged a man from facing trial for allegedly raping his wife, given that Indian law does not recognise marital rape if the wife is above 15 years of age.
Justice N K Chandravanshi relied upon an exception under Section 375 of the IPC, which states that “sexual intercourse or sexual act by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
The judge noted, “in this case, complainant is legally wedded wife of applicant No. 1, therefore, sexual intercourse or any sexual act with her by the applicant No. 1/husband would not constitute an offence of rape, even if it was by force or against her wish.”
In July 2020, the Tripura High Court reduced a convict’s punishment for throwing acid on his wife, noting that the wife’s repeated refusal to reunite with him was a “mitigating circumstance”.
A bench comprising Justice S. Talapatra and Justice S.G. Chattopadhyay observed: “This circumstance indicates that the appellant desired to restore his matrimonial relationship with his wife but his reluctant wife was not willing to reunite with him which might have caused a sense of frustration in the appellant.”
Unbecoming of an Indian woman to sleep after being raped
In June 2020, the Karnataka High Court allowed the pre-arrest bail of a man accused of rape, noting that it was “unbecoming” of an alleged rape survivor to have slept after she was “ravished”.
“The explanation offered by the complainant that after the perpetration of the act, she was tired and asleep, is unbecoming of an Indian woman. That is not the way our women react when they are ravished,” observed Justice Krishna S Dixit.