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Crying ‘Rape’: Stringent law left expanded ambit of sexual assault open to misuse

D K Rituraj looks at why more than 70 pc of rape cases in 2013 in Delhi have resulted in acquittal.

Delhi Police’s data, which shows a rise in the registration of rape cases in the Capital last year, also shows that in 585 of the 1,559 cases, the accused was either the woman’s friend or lover. (Reuters) Delhi Police’s data, which shows a rise in the registration of rape cases in the Capital last year, also shows that in 585 of the 1,559 cases, the accused was either the woman’s friend or lover. (Reuters)

The stringent law brought in a year ago in the wake of the Dec 16, 2012, Delhi gangrape expanded the ambit of sexual assault but, as is being realised now, left it open to misuse. D K Rituraj looks at why more than 70 pc of all rape cases filed in 2013 in the Capital have resulted in acquittal.

It was a New Year party Ashok* is unlikely to forget. As the 26-year-old was celebrating with his friends on the evening of January 3 this year at R K Puram, a Delhi Police team barged its way in and handcuffed him. On their way to the police station, they told him he had been arrested on the charge of rape, on the basis of an FIR filed by his ex-girlfriend. Ashok was shocked. They had broken up three years ago, but he “could not believe she could take such a step”. “I tried to convince everyone that there was some confusion. She could not have filed the FIR. We were in love,” Ashok says over the phone.

Ashok’s disbelief was proved right when his 25-year-old ex-girlfriend filed her affidavit before the sessions court. “The complaint given to the police was not drafted by me,” she wrote, requesting that it be withdrawn. “I never wanted any criminal complaint against him and neither wished to see him go to prison.” The woman named her lawyer and an NGO for “misguiding and compelling” her into lodging the criminal complaint.

On January 22, the sessions court released Ashok on bail and directed that an FIR be lodged against the parties responsible for the false complaint. Once an FIR is lodged, criminal proceedings shall be initiated against the parties under Section 211 of the IPC, which can lead to imprisonment for up to seven years along with fine.

Ashok spent three weeks in Tihar jail but, his lawyer believes, he was lucky. “There are so many cases where the man languishes in jail and then keeps running around courts for years before he gets acquitted,” says the lawyer, refusing to be identified.

One of these cases is of 27-year-old Ajay*, a consultant with a firm in Noida. Since 2011, Ajay has spent all the 45 days of leave he is entitled to in a year making appearances at the Saket court in Delhi, where he is being tried for “raping” his former live-in partner. He and the woman studied together in school in a small town of Uttar Pradesh. They went to different colleges, but met again in Delhi, where they both had corporate jobs. They moved into a flat in Malviya Nagar and dreamed of getting married. A little over a year though, their world came crashing down. Ajay’s family opposed the marriage and the couple split.

According to him, the woman then filed an FIR accusing him of rape. “I lost my job and spent time in jail. After I got bail, I got another job in Noida. Now all I do is survive, not live,” Ajay says. His ex-girlfriend, he adds, has “moved on”, with a husband and a child, while he is “neither interested in marriage nor even looking at women”. He adds that he met four other men in Tihar, who had been charged with raping their ex-girlfriends, fiancées, live-in partners after they broke up.

In the wake of the outrage and protests that followed the 2012 gangrape in Delhi, the government appointed the Justice Verma Committee to make recommendations for a more stringent rape law. The committee submitted its report in January 2013 and exactly a year ago, Parliament passed the Criminal Law Amendment Act, 2013. The new law redefined rape to include non-penile penetration to any extent into any of the orifices of a woman’s body, and also brought acid attacks, stalking and voyeurism under its purview.

Last month, Tehelka editor Tarun Tejpal was chargesheeted under the new Section 376(2)(k) IPC, dealing with rape by person in position of control or dominance over a woman, the first time this was applied in India.

Women’s groups that had been seeking stringent laws against sexual offenders hailed the new legislation, even as voices seeking more debate on some of the provisions were drowned out. Soon, a steady stream of patently false complaints was making its way into police stations and courts. In May 2013, Justice Kailash Gambhir of the Delhi High Court observed that rape laws were being used as “a weapon for vengeance and personal vendetta”.

In December 2013, the issue came into focus when the director of a prominent Delhi-based NGO allegedly committed suicide following a rape allegation. The Delhi Police’s data, which shows a rise in the registration of rape cases in the Capital last year, also shows that in 585 of the 1,559 cases, the accused was either the woman’s friend or lover. In 261 cases, the complaint was filed after the couple had eloped, in 23 cases, couples were married and in 28, women accused live-in partners of rape.

These, along with other cases of sexual offences against women in the Capital, are decided by six fast track courts, which began functioning in January 2013. Out of around 352 cases decided by these courts until October 2013, around 248, or 70.45 per cent, had resulted in acquittal.

Explaining the high acquittal rate, a prosecutor at a fast track court says, “Most of these cases arise out of an affair gone wrong. The parties reach a settlement and the prosecutrix (victim) turns hostile mid-way during the trial, or the court concludes that there was consent in the sexual relationship.”

In a few cases, however, courts have convicted men for reneging on “promise to marry”. On November 25, 2013, Additional Sessions Judge Yogesh Khanna (who awarded death in the December 16 gangrape case) sentenced a 31-year-old to seven years for raping a woman on the pretext of marrying her. The man and woman had been in a long-distance relationship. The woman told the court that when she came to Delhi to meet the man, he forced himself on her. He reportedly kept promising to marry her, and they were in a physical relationship for two years. When the woman got pregnant, she contacted the man’s parents who, she claimed, refused to allow the marriage and abused her. The court held that sex between them was rape since the woman consented in anticipation of a marriage. “Submission of a woman cannot be treated as consent,” the court held.

The Supreme Court and several high courts have often fixed a man’s guilt on the basis of whether the woman consented to sex on the promise of marriage alone or additionally “on account of her love and passion” for the man, or whether the man “really” intended to marry a woman. Because these considerations are subjective, the outcome differs across situations and judges. But most still result in acquittals.

For example, in December 2013, a sessions court dismissed allegations of rape levelled by a journalist against her boyfriend on the grounds that the man had a right to say no to the woman if the relationship did not work out. Additional Sessions Judge Dharmesh Sharma called the rape charge unfathomabale. “The accused, despite best intentions, had his reasons to say ‘no’ to the marriage when he saw an unreasonable side of the prosecutrix,” the judge said.

Experts count parents among the biggest abusers of the rape law. A National Commission for Women (NCW) member says parents of eloping couples “stand next to spurned lovers when it comes to lodging false complaints”.

Most of the times, parents lower the age of their daughters while pressing charges of rape. In November 2013, a sessions court directed the Delhi Police to take action against parents who had claimed that their daughter was a minor while registering a case of rape and kidnapping against the man she had eloped with. After the police located her, the parents married off the girl to another man. Additional Sessions Judge Kamini Lau while acquitting the man observed that the parents had used the police to marry their daughter within their community, and directed “appropriate action” against the mother. Such directions are, however, rare.

Human rights lawyers argue that setting of 18 as the consensual age for sex has also led to “over-criminalisation of consensual sex”. “When the law was being amended, women’s right groups had asked to lower the age to 16, which was not done. So, young people having consensual sex or experimenting with sex are left vulnerable to prosecution,” says lawyer Vrinda Grover.

A man is particularly vulnerable. He can be tried for sexual assault under the stringent provisions of the Protection of Children from Sexual Offences Act (POCSO) as well as additional charges of kidnapping and wrongful confinement if he elopes with a girl below 18 years of age.

But sometimes judges prefer spirit over letter in such cases. For example, Additional Sessions Judge Dharmesh Sharma acquitted a 19-year-old husband on charges of raping his minor 16-year-old wife, saying, “Whether this ‘zalim society’ agrees or not, for all practical purposes they are married.” The couple had married in a temple in Delhi before running away to the boy’s village in Bihar. The girl’s family filed an FIR and the boy got arrested in June 2013 and put in jail for about two months. The girl was found to be pregnant. During the trial, she told the judge that she had willingly married the boy.

The courts, though, rarely pursue follow-up action on perjury, thanks to an overload of pending cases and the need for speedy disposals. “In most cases where witnesses turn hostile, the parties enter into marriage or arrive at a settlement during the trial. What steps can you take then?” asks A T Ansari, a prosecutor at a fast track court.

However, in exceptional cases, where it was found that the woman had pressed charges to extort money, action has been taken. In July 2013, the Delhi Police arrested a woman who had lodged 14 cases of rape and sexual harassment against several men. One of the men had registered a complaint against her, alleging that the woman had borrowed money from him and had pressed charges of sexual assault when he asked her to return the amount. The woman was arrested after investigations revealed that she had been involved in four such cases of cheating and extortion. The woman is currently in judicial custody.

However, the new rape law and the public anger after the December 16 gangrape have made it almost impossible for the police to intervene in rape cases which strongly appear to be false, or to initiate a settlement. “Rightly or wrongly, the police does not have that space any more. Any complaint that comes is straightaway registered and the matter handed to NGOs and courts after investigation, so you have more reporting of sexual offences and a higher number of false cases,” says Yogesh Kumar, a co-ordinator at Pratidhi, an NGO working with victims of sexual assault.

A magistrate at the city’s Mahila Court says that she faces scores of such false cases every day. “Most of these cases are between neighbours, boss-employee, landlord-tenant. More often than not, personal grievances are painted as sexual offences. In such cases, we give bail to the man,” she says.

Legal experts suggest better drafting of laws, greater sensitisation of police, stricter judiciary and a vigilant prosecution to resolve the issue of false rape cases. Retired Justice Usha Mehra says that she had included all these suggestions in a 160-page report submitted to the government for improving the status of women’s security in the capital, after the December 16 gangrape. A year later, she adds, “Not one of the suggestions has been implemented.”
Recognising the “mental harassment and physical torture” a man accused in a false rape case has to go through, Additional Sessions Judge Virender Bhat in January 2014 suggested that in such cases, either the State or the woman compensate the man. The suggestions were made while acquitting a man who had been accused of raping his former landlady. The woman admitted in court that she had an affair with the man and had pressed rape charges after her husband learnt of the affair.

“In cases where the court comes to the conclusion that the accused had been implicated on totally false and baseless charges, the accused, in fact, is the victim,” Judge Bhat observed.

Ajay*, meanwhile, continues to take leave from work every time he has to attend the court, which is at present recording the statement of the investigation officer in the case. His lawyer tells him that the court will pronounce the verdict by this year or the next. “I don’t care when the verdict comes or what will happen if I am convicted. I don’t believe in the country’s laws anymore,” he says.

* Names have been changed to protect privacy

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