An Analysis Of Law Relating To Marital Rapes In India By - Bhupender Singh Antil & Deepak Bedi
An
Analysis Of Law Relating To Marital Rapes In India
Authored By - Bhupender
Singh Antil
& Deepak Bedi
INTRODUCTION
Before Raja Ram Mohan Roy's campaign, women were seen as the
property of men, and harmful practises like Sati and child marriage were
commonplace. It was the first time in the Indian Independence Struggle that
women engaged on an equal footing with men, and Mahatma Gandhi took enormous
strides to better their socioeconomic conditions as a result. It was as a
result of these activities that a Constitution was drafted that guaranteed
women the right to vote and the opportunity to run for office on equal footing
with men. Following independence, practically every sector saw development and
progress, allowing for a greater emphasis on bettering women's lives.
Discrimination against them because of their gender was rather common. Due in
large part to persistent activism on the part of Indian women, the Constitution
guarantees equal rights for men and women. Following the country's
independence, various legislative reforms were enacted to empower women and
elevate their status in society, ensuring that they would be free from
discrimination. Women now have the same legal protections and political rights
as men thanks to the Constitution.
The constitution guarantees women equal rights and
protections so that they can participate equally in national decision-making.
In light of the recent success of Mangalyaan, wherein the entire team consisted
primarily of female scientists, this is a noteworthy example to cite. There are
still numerous areas where the United States falls behind other countries,
despite the fact that women have made enormous strides in practically every
industry, including academia, law enforcement, and the scientific and
technological communities.
MARITAL
RAPE
To put it simply, marital rape occurs
when one spouse has sexual contact with the other without their permission.
The Indian Penal Code defines rape as
"any other sexual penetration of the vagina, anus, or mouth of another
person, with or without force, by a sex organ, other bodily part, or foreign
object, and it is a crime to engage in sexual activity with another person
without their consent.” (Section 375).[1]
Non-consensual sexual activity
between a married couple, however, is not considered rape under the law.[2] Domestic
violence refers to “the violent or aggressive behaviour within the home which
involves the violent abuse of a spouse or partner[3] which
takes place with a woman because the husband in all the circumstances is
powerful and most males comprehend that marriage gives them the right to have
sexual intercourse with the wife at any point of time whether she is willing or
not.” This is the face of a patriarchal society; this act is detrimental to the
institution of marriage. IPC, 1860 provides for rape and punishment for rape
under section 375 and 376, respectively.
Justice Ahmad stated in the case of
Bodhisattwa Gautam v. Subhra Chakraborty, that this "cruel act, in turn,
destroys the entire psychology of a woman and pushes her into deep emotional
crises" because marriage is a form of social bonding between the spouses
and everything in this institution needs to have the consent of both.[4]
Almost everywhere in the globe,
either the current legislation has been updated or a new law has been enacted
to make marital rape a crime. There are now over 150 nations whose laws
specifically prohibit or severely punish marital rape. While rape inside a
marriage is illegal in all 50 states in the United States, the maximum sentence
in the United Kingdom is life in prison. In countries like the United Kingdom[5],
Fiji it was criminalised due to decision delivered by courts, in some countries
like Brunei[6] the
offence is explicitly criminalised. In some countries like Bangladesh, India[7] “the
law for marital rape does not exist because women are considered the property
of the husband and the state does not interfere in the institution of marriage.”
There are a number of laws in place
to prevent discrimination against women, such as dowry, domestic abuse, and
cruelty; nevertheless, marital rape is not yet criminalised. Victims of marital
rape suffer psychological and physiological harm since they are forced to spend
the rest of their lives with the guy who abused them. Since there are no laws
against marital rape, and reporting such a crime might result in social stigma,
it is highly underreported in the nation.
As people in the 21st century become
increasingly conscious of their own rights and wants, so too must the laws that
protect them. According to the Indian Penal Code of 1860, it is illegal to have
sexual relations with a wife who is younger than 15 years old. The catch here,
though, is that there is a way out. An Indian child marriage is simply
voidable, not void, according the country's Prohibition of Child Marriage Act
(2006).[8] Any
marriage in which a minor marries an adult must be recognised by law unless the
minor files for divorce within one year of reaching the age of majority. This
allows husbands to have sexual relations with their wives until they reach the
age of majority despite the fact that there is no mechanism in place for males
to seek agreement from their wives between the ages of 15 and 18.
Non-consenting intercourse between a male over the age of 50 and a woman under
the age of 16 can be lawful, whereas consensual intercourse between a boy and a
girl under the age of 17 is prohibited.
Domestic violence is defined as
"harms or injures or endangers the health, safety, life, limb or
well-being, whether mental or physical, of the aggrieved person or tends to so
and includes causing physical abuse, sexual abuse, verbal and emotional abuse,
and economic abuse" in Section 3(a) of the Protection of Women from
Domestic Violence Act, 2005.[9] Sexual
abuse mentioned under this definition “includes any conduct of a sexual nature
that abuses, humiliates, degrades or otherwise violates the dignity of woman[10] ,
which in turn gives a chance to wives to initiate legal proceedings.” The
negative aspect of this action is that it is not always unlawful in nature.
There is no provision for a jail sentence. Instead, it allows for monetary
restitution, restraining orders, and other forms of protection.
EFFECTS OF MARITAL
RAPE
There are lasting effects from
experiencing rape in a marriage, and they can be detrimental to a woman's physical
and emotional health. In this section, we break down the many mental and
physical health problems a raped woman may face into their respective
subheadings.
a.
Psychological Effects
Depression, post-traumatic stress
disorder, fear, low self-esteem, rape trauma syndrome, and a lack of sexual
desire or satisfaction have all been reported by women who have experienced
marraige rape.[11] When a couple ties the knot, the
lady automatically becomes the object of her husband's libidinal desires.
Without question, any woman who experiences this for the first time will be
taken aback by the possibility that she may be forced to submit to it. After
that, everything happens must feel terrible yet numbing, but she understands
that resisting or disputing her partner's authority would lead nowhere. The
woman worries that her prestigious last name will be ruined. Consequently, she
is under pressure to uphold the honour of her ancestors.
The medical community has coined the
phrase "Rape Trauma Syndrome" to describe how survivors of rape
react, and it describes the typical reaction of a mentally healthy individual
to the trauma of rape.[12]
This might happen right away or it could take months or even years. There's a
chance the victims may feel degraded or embarrassed. Victims can wonder what
they might have done differently or why they were helpless. Some victims may
also place the blame on themselves, thinking that they were weak or unwilling
to stand up to their spouses' sexual advances.[13]
Rape's classic psychological fallout is self-blame, which can lead to PTSD
since it heightens the victim's sense of powerlessness (they did nothing to
deserve being raped, thus they must have done something wrong).
People who experience this may feel
uncomfortable coming out because they might not want to draw attention to
themselves or their situation. They believe that discussing this with other
individuals may attract unwanted attention. In the case of Bodhisattwa Gautam
v. Subhra Chakraborty[14],
a criminal complaint was filed based on a consensual affair and a questionable
finding of rape due to failure to marry. Also, in a hearing for criminalizing
marital rape, Hon’ble Delhi High Court in 2018 said that: “Force
is not a pre-condition for rape. If a man puts his wife under financial
constraint and says he will not give her money for household and kids expenses
unless she indulges in sex with him and she has to do it under threat.”[15] All of these things place mental
strain on the victim and, if they have children, on them as well. The kids may
have a nervous breakdown or develop clinical depression as a result of this.
Therefore, it is clear that such actions not only ruin a woman and her life,
but also have devastating consequences for the wellbeing of her children, setting
off a vicious cycle.
b.
Health Issues
Although there is a provision
provided in the Protection of Women from Domestic Violence Act, 2005[16],
but that accounts for only civil liability for sexual abuse. Motivations for
using physical force might include establishing one's superiority and creating
an atmosphere of intimidation in the hopes of achieving one's goals peacefully.
As a result of repeated rapes, most
women have chronic pain. Because of this, they end up with fractured ribs,
knife wounds, markings all over their body from the attack, and black eyes.
These are but a handful of the possible issues that women face. Most patients
have complained of vaginal pain and bleeding. Experiencing severe vaginal
rupture causes severe bleeding.[17] People
who are coerced into having anal intercourse may experience bleeding,
discomfort, and irritation. If they are reminded of the abuse, they may
experience nausea. In addition, the sufferer may experience emotional and
psychological strain from an unplanned pregnancy.[18] More
so if the victim is a young adult (between the ages of 15 and 18). This might
lead to the need for an early delivery, which can have devastating effects on
the baby. Vaginal rupture is another potential cause of infertility that might
leave the sufferer childless for the rest of her life. This can have
devastating long-term effects on the victim, especially if they ever wish to
have children. Lifelong scarring is a real possibility. Suicide is another
option for those affected by this. Suicide may seem like the only choice to
someone who has experienced marital rape because of the stigma associated with
it and the difficulty in disclosing the abuse to others.
MARITAL
RAPE LAWS IN INDIA
While there
have been numerous changes and new laws passed in our nation, domestic rape is
still not regarded to be a crime here. In the absence of such legislation, the
court is left to decide whether or not a woman should be protected within the
context of marriage.
Under Section
375 of the Indian Penal code, has mentioned exception that – “Sexual
intercourse by a man on his own wife, the wife not being under 15 years of age,
is not rape”[19]
Under the
Indian Penal Code, the instances where punishment is awarded to husband under
marital rape is as follows:
i.When the age of wife is between 12-15
years, there can be imprisonment up to 2 years or fine or both;[20]
ii.When the age of wife is below 12
years, there must be imprisonment for term which shall not be less than 7 years
but can also extend to life and shall also be liable to fine.[21]
iii.When the wife is judicially
separated, there can be imprisonment up to 2 years and fine[22]
Since a woman's human rights are
directly violated whenever her husband engages in sexual harassment, it follows
that after a woman reaches the age of 15, she is no longer protected by the law
if she experiences sexual harassment. Shockingly, while the Constitution sets the
minimum age for marriage at 18, there is no legal recourse for victims of
sexual assault after they reach age 15.
Since the old law held that marriage
itself granted authorization to have intercourse at any time after the marriage
and the agreement of the female was not needed, it is clear that the law, which
is intended to protect victims, is unable to do so in the case of marital rape.
A woman is subjected to violence, which forces her into sexual behaviour in
which she sustains both bodily and mental harm. Our courts and legislature
continue to remain mute on the question, "Is marriage a licence to
rape?"
The Report of 42nd Law
Commission[24] talks
about “the removal of exception of Section 375 from the IPC because it is
discriminatory towards women and is not in accordance to the law.” Even the Report
of 172nd Law Commission[25]
was in favour of removing the exception to Section 375 thereby making marital
rape a criminal offence but more than 10 years have passed and no action has
been taken on the same issue.
CONSTITUTION
OF INDIA ON MARITAL RAPE
Several
arguments might be made against this law's seeming tolerance of spousal rape.
In accordance with the Indian Constitution, all legislation enacted by the
legislature must adhere to the Constitution's basic structural theory. Any law
that goes against this can be ruled unlawful by the courts. If a statute or
other provision were to be passed condoning marital rape, it would have to be
consistent with the Constitution's essential premise.
Article 14
Article 14 of the
Indian Constitution[26]
guarantees the “Fundamental right of equality before the law and equal
protection of the laws within the territory of India.” However, there is still
a lack of recognition in criminal law for the prejudice that victims of marital
rape experience. Because it creates a new strata of women who would not gain
protection from the law if they encounter sexual harassment from their spouses,
the Exception to Section 375 of IPC is discriminatory law for married women and
fails to meet intelligible differentia.
Abuse committed by a
spouse against his wife is not covered under Section 375. Article 14 of the
Indian Constitution prohibits discrimination, therefore exempting someone from
the application of Section 375 of the IPC because of their marital status is
discriminatory. Everything else about a rape also applies to a marital rape;
the only difference is that the victim is married in the latter circumstance.
In turn, it's challenging for married women since they have to spend their
entire lives with their abuser and rely on him financially. The reality is that
this loophole encourages husbands to engage in forced sexual intercourse since
they know that doing so will not result in legal repercussions. Since the
female victims of marital rape do not have access to equal protection under the
law, and since the crime fails the twin criteria of intelligible differentia
and reasonable linkage established by Article 14 of the Indian Constitution, it
must be considered a violation of the constitution.
Article 21
Article
21 of the Indian Constitution says that:
“[N]o
person shall be deprived of his life or personal liberty except according to a
procedure established by law.”[27]
In the case of Kharak Singh v. State of Uttar
Pradesh[28],
the Hon’ble Supreme Court held that “[b]y the term “life” as here used
something more is meant than mere animal existence” The Supreme Court has
repeatedly reshaped this article via its interpretations in various judgments.
The right to health, dignity, a secure environment, sexual privacy, and human
dignity are only a few of the many rights guaranteed to people under Article
21. In the case of State of Karnataka v. Krishnappa[29]
, the Hon’ble Supreme Court held that “[s]exual violence apart from being a
dehumanizing act is an unlawful intrusion of the right to privacy and sanctity
of a female.”, it further held that “rape in itself is a serious blow to
the self-esteem and dignity of the victim and it degrades her, leaving behind a
traumatic experience.”
i.Right to Healthy and Dignified Life
In the case
of C.E.S.C. Ltd. v. Subhash Chandra[30],
the Hon’ble Supreme Court held that “Right to Life also includes the Right to
live a healthy and dignified life which is one of the most important things to
maintain the individuality of a citizen in the country.”[31] Because
marital rape causes emotional, psychological, and physical problems for a woman
and puts her into depression, and because there is always a chance of
transmission of STDs in the case of forceful sexual intercourse, the exemption
to Section 375 is a violation of the right to good health of a married woman.
It has been established in several cases heard by the Hon'ble Supreme Court
that rape is a crime against society and a violation of Article 21 of the
Indian Constitution.[32] Therefore,
the essential structure of Article 21 is violated and is unconstitutional,
since the exception to Section 375 of the IPC is in plain violation of the
woman's right to live a healthy and dignified life because sexual intercourse
without the woman's permission undermines her dignity and health.
ii. Right to Sexual Privacy
There are
numerous cases in the Apex Court where it has been held that Right to Privacy
is to be protected constitutionally under Article 21.[33]
Therefore, any type of forceful sexual act to a woman is a violation of her
privacy as it is her body and she has full right to consent to it and protect
it. If we talk about sexual privacy the same has been discussed by the Hon’ble Supreme
Court in the case of State of Maharashtra v. Madhkar Narayan[34]
where it was held that “[e]very woman is entitled to her sexual privacy and
the same is not open to for any and every person to violate her privacy”. But
a married woman's right to sexual privacy has been violated by the IPC's
exception of marital rape, as no one should coerce her into sexual activity.
This exception consequently violates the Right to Privacy and should be struck
down as illegal.
iii.Right to Bodily Integrity
A woman has the right to decide for
herself whether or not she wants to engage in sexual activity, and no one has
the authority to force her to do so against her will. Under Indian law, if a
woman refuses sexual activity and is coerced into it, the perpetrator is guilty
of rape, but if a married woman is coerced into sexual activity, the
perpetrator is guilty of adultery. Since marriage does not eliminate the
requirement for permission before engaging in sexual intercourse, the exception
to Section 375 is a violation of a married woman's right to control her own
body.
Because of this, Articles 14 and 21
of the Indian Constitution prohibit any kind of immunity for Marital Rape under
the Indian Penal Code, making Section 375 of the Indian Penal Code clearly
unconstitutional. Since this is not a fair legislation and establishes a
distinction favouring a married woman, it fails the "just, fair, and
reasonable law" and the "reasonable categorization" standards.
This provision is no longer necessary and should be removed from the IPC;
instead, India should implement stringent measures to protect the rights of
married women, as many of them have been the victims of rape within their own
marriages without any effective legal protections other than Section 498A of
the Indian Penal Code and the Domestic Violence Act. The Supreme Court in the
case of State of Maharashtra v. Madhukar Narayan Mandikar [35] held
that “A prostitute had the right to refuse sexual intercourse if she is
being forced and the same is being done without her will; not withholding the
same will amount to Rape.” It's a huge issue, and the Indian judicial
system has criminalised practically all rapes but provided an exception for
marital rape, which leaves a disproportionate number of women vulnerable to
assault.
HUMAN
RIGHTS PERSPECTIVE
The vast
majority of individuals believe that rape within a marriage should not be
treated as a criminal offence. That's the way public perception is shaped, and
it paints a dire picture of the country. Since the majority of Indians are
culturally engaged and hold that the rules that characterised India a thousand
years ago are widespread even now, these arguments have acquired traction.
Furthermore, given the discriminatory nature of this exemption, these arguments
are irrelevant in the modern context. The counterarguments have been laid out
below.
Arguments
against Criminalising Marital Rape
i.The
Sanctity of Matrimonial Institution
One argument
against making marital rape a crime is because doing so would undermine
marriage's sacredness and, by extension, the stability of families. If husbands
and wives couldn't trust each other, marriage would lose its holy purpose. Any
attempt to criminalise marital rape would force the state to cross the barrier
between the private sphere of the home and the public sphere of the courtroom, presenting
a formidable obstacle to the judicial system. If the state were to pass a law
mandating the practise, it would be beyond its legal authority. Any move that
blurs the boundary between what happens in a marriage and what happens with
other people is likely to be met with hostility and criticism.
ii.Marriage
is Consent
Marriage is
the legal union of two people in their individual capacities. Some have also
stated that the lady has given her agreement to the marriage as both parties
have freely engaged into this arrangement. It is the parents' duty to arrange a
suitable marriage for their daughter if she is not the one initiating the
union. Many cultures still do not include the woman's permission in their
decision-making process. The wives are presumed to have granted their husbands
their sexual permission when they agreed to get married or had their marriages
arranged. It's important to distinguish between an arranged marriage and a
forced marriage. In an arranged marriage, the prospective spouses express
interest in getting married soon after meeting, but in a forced marriage, at
least one of them expresses reservations about the idea.
iii.Cultural
Boundaries
Traditions,
conventions, and values have been ingrained in people from a young age.
Everyone has these standards ingrained in their minds, and anything that
deviates from them or is out of sync is considered forbidden. In accordance
with these cultural traditions, it is expected that a man's wife will provide
for his sexual gratification. A nation's culture is its defining characteristic.
iv.Pseudo
Cases
It has also
been suggested by a significant majority of individuals that wives would use
the fear of legal action against marital rape as a strategy to leave their
husbands or to coerce them into doing something they don't want to do. The
Supreme Court found that "[s]ection 498A is being utilised as a weapon by
dissatisfied wives" in the case of Arnesh Kumar v. State of Bihar.[36] The
guys would be subject to constant judicial observation. A flurry of frivolous
lawsuits might be filed, delaying justice for genuine cases and causing chaos
in the court system. It has taken India years to amass enough funds to pay for
all the cases that have been postponed because of this.
v.Pre-existing
Legislation
Marital rape,
it is argued, may be remedied by enforcing the Protection of Women from
Domestic Violence Act of 2005. Some people argue that the state shouldn't pass
its own version of this law if a federal law with similar provisions is already
in effect. As defined in Section 3(a), marital rape "includes inflicting
physical abuse, sexual abuse, verbal and emotional abuse, and economic
abuse" and "harms or injures or endangers the health, safety, life,
limb or well-being, whether mental or physical" of the injured person.[37] Existing
protections account for the husband's history of sexual and verbal abuse.
Arguments
in Favour of Criminalisation
i.Sanctity
is Distorted
The purity of
marriage is violated when a husband has sexual relations with his wife without
her permission. Since marital rape is outside the purview of marital disputes,
there can be no going back on this position. Similarly in the High Court of
Gujarat, in the case of Nimeshbhai Bharatbhai Desai v. State of Gujarat[38], it
was held that the “[n]on-consensual act of marital rape violates the trust
and confidence within a marriage and the prevalence of marital rape in India is
what has damaged the institution of marriage”. This argument loses any
moral compass when the sanctity of human life is called into question.
ii.Consent
is Important
According to
the Prohibition of Child Marriage Act of 2006, a marriage between a minor and
an adult is nullifiable.[39] Parents
have the right to marry off their underage children to anybody they want, and
the children have no legal right to divorce or cancel the marriage until they
reach the age of majority (18 in most countries). However, sexual activity
between a man and a wife younger than or equal to 15 years of age is illegal
according to Section 375 of the Indian Penal Code, 1860.[40] For
individuals, however, who are between the ages of 15 and 18, this opens up a
grey area. In order to afford housing, they must share a home with someone who
may or may not try to coerce them into sexual acts. This is a long-held custom
whereby wedding vows are considered consent. Now that we live in the 21st
century, these antiquated statutes may be updated to reflect modern culture.
iii.Changing
of Culture
According to
the Mahabharata tale, Yudhishthira wagered his bride against Duryodhana in a
game of chauras. Throughout history, women have been seen and treated as simply
property. The bride's father traditionally performs the kanyadaan, or
"giving away," of his daughter to her future spouse. A girl's family
views her as an outsider who belongs to her husband. The rights of women in our
modern period mean that such archaic customs must be challenged rationally, and
objectification of women is no longer acceptable. Support for the cultural
paradigm is warranted. In this way, outmoded customs might be updated or
abandoned altogether.
iv.A
Criminal Liability
Both the
Hindu Marriage Act and the Domestic Violence Act give victims of domestic
violence legal recourse to escape abusive relationships. Some have questioned
the necessity for new legislation protecting women in India as there is already
a law against domestic violence that covers "sexual abuse." Offenders
face solely civil penalties under the Protection of Women from Domestic
Violence Act of 2005. Furthermore, in civil responsibility, the offender can
avoid criminal prosecution by only compensating the victim. The person
responsible for this must be locked up in prison. Showing that the state will
not tolerate such behaviour by not punishing those who engage in this crime
sends a strong message to the rest of society.
CONCLUSION
Justice
Krishna Aiyar in the case Rafiq v. State of Uttar Pradesh said that “A
Murderer kills the body but a Rapist kills the soul”[41].
However, the State argues that marriage is not sacred and that it is the
private affair of the husband and wife, and it has passed a number of laws
regulating various aspects of marriage (including dowry, adultery, cruelty, and
dissolution of marriage). If India were to add marital rape to the list, it
would be a big win for the country's mental health. The state also said that
criminalising marital rape would “destabilize the institution of marriage”[42]
and it can be easily used to “harass husbands”. When the fundamental sanctity
of a marriage has been violated, how might seeking redress for that violation
threaten the stability of the marriage? When one partner attempts or engages in
sexual abuse of the other, the marriage is already in a precarious position.
Regarding the second issue, "harassing husbands," fast-track courts
and their rapid trials are a viable solution. The proliferation of fast-track
courts around the country would be a good first step toward resolving the
problem of frivolous lawsuits. Unfortunately, it might take years to have
marital rape criminalised when the state is adamant about not taking any action
to help the cause. To ensure that married women have access to the legal system
to resolve disputes, it is vital to criminalise the same. Only until the
difference between rape and marital rape is recognised can it be made a crime.
Racial
stigmatisation of spouse-on-spouse homicide has to be addressed immediately. As
a people, we value our cultural heritage and historical customs highly. As a
result, there will be no more taboo conversations. Ignoring these taboos will
not eliminate the problem; it will just postpone its resolution. No country can
legalise marital rape until its own people are aware of the concept. Even if
rape in a marriage were to be made illegal, there would still need to be a
detailed explanation of the law. In order to reach the pinnacle of justice, it is
necessary to raise consciousness about marital rape. Many groups have made
commitments in this direction, but the judiciary won't pay much heed until the
public does. According to the statistics, 70% of women will suffer some kind of
intimate relationship abuse in their lives.[43] It's
a violation of the basic liberties our ancestors fought for. Liberty and
equality are guaranteed under the Indian Constitution, namely Articles 14 and
21. If India is serious about stopping domestic violence, it must make a choice.
No longer can India, a country where goddesses are worshipped, remain mute on
this matter. It would be a serious injustice if it happened.
[1] The Indian Penal Code,1860 (45 of
1860), s. 375
[2] The Indian Penal Code,1860 (45 of
1860), Exception to s. 375
[3] The Protection of Women from
Domestic Violence Act, 2005. (No 43 of 2005)., s.3
[4] Bodhisattwa Gautam v.
Subhra Chakraborty (1996) 1SCC 490
[5] R. v. R, [1992] 1 AC 599
(UK)
[6] Brunei’s Penal Code, s.375
[7] Supra note 3
[8] The Prohibition of Child Marriage
Act, 2006, s. 3(a)
[9] The Protection of Women from
Domestic Violence Act, 2005. (No 43 of 2005)., s3(a)
[11] Campbell, R., Dworkin, E. and Cabral, G., An ecological
model of the impact of sexual assault on women's mental health. Trauma,
Violence, & Abuse, 2009
[12] Surjibhai Badaji Kalasva v.
State of Gujarat, (2018) 59 (3) GLR 2498
[13] Ann Burgess and Lynda Holmstrom, Rape
Trauma Syndrome, American Journal of Psychiatry 981-986 (1974).
[14] Bodhisattwa Gautam v.
Subhra Chakraborty, (1996) 1 SCC 490.
[16] Supra note 4
[17] Supra note 12
[18] Sarkar J. Mental health assessment
of rape offenders, 55(3) Indian J Psychiatry 235?243 (2013).
[19] Supra Note 1
[20] The Indian Penal Code (45 of
1860), s. 376(1).
[21] Ibid
[22] The Indian Penal Code (45 of
1860), s. 376A.
[23] Supra Note 3
[24] Law Commission of India, “42nd
Report on Indian Penal Code,1860” (June, 1971).
[25] Law Commission of India, “172nd
Report on Review of Rape Laws” (January, 1998).
[26] The Constitution of India, art.
14.
[27] The Constitution of India, art.
21.
[28] Kharak Singh v. State of
Uttar Pradesh, AIR 1963 SC 1295.
[29] State of Karnataka v.
Krishnappa, (2000) 4 SCC 75 (India).
[30] C.E.S.C. Ltd. v. Subhash
Chandra, (1992) 1 SCC 441 (India).
[31] See also Bandhua Mukti Morcha
v. Union of India (1997) 10 SCC 549, Francis Coralie v. Union Territory of
Delhi 1981 AIR 746, 1981 SCR (2) 516
[32] The Chairman, Railway Board v.
Chandrima Das¸ AIR 2000 SC 988.
[33] Govind v. State of Madhya
Pradesh, AIR 1975 SC 1378.
[34] State of Maharashtra v.
Madhkar Narayan, AIR 1991 SC 207.
[35] Supra note 29
[36] Arnesh Kumar v. State of
Bihar, (2014) 8 SCC 273 (India)
[37] Supra note 10
[38] Nimeshbhai Bharatbhai Desai v.
State of Gujarat, (2017) No. 26957
[39] Supra note 9
[40] Supra note 21
[41] Rafiq v. State of Uttar Pradesh,
1980 Cr. L.J. 1344 SC
[42] Nimeshbhai Bharatbhai Desai v.
State of Gujarat R/Criminal Misc. Application Nos. 26957, 24342 of 2017 and
R/Special Criminal Application No. 7083 of 2017
[43]
World Health Organization, Department of Reproductive Health and
Research, London School of Hygiene and Tropical Medicine, South African Medical
Research Council (2013). http://www.who.int/reproductivehealth/publications/violence/9789241564625/en/