INTRODUCTION TO THE CASE

Tukaram and Another v. State of Maharashtra (Mathura

Rape Case)

The infamous case of Tukaram and Another v. State of Maharashtra, more

commonly referred to as the Mathura Rape Case, sparked off vehemence
and uncurbed conflicts, resulting in radical changes within the sphere of rape
laws governing India. This case witnessed the matter of custodial rape of a
lass named Mathura. The Judgment of this case delivered by Justice Jaswant
Singh, Kailasam and Koshal were highly condemned and criticized for its
logical, legal and linguistic fallacies alongside its ambiguous and sexist tone.
This case gained widespread recognition after four distinguished professors:
(a) Upendra Baxi
(b) Raghunath Kelkar
© Lotika Sarkar, and
(d) Vasudha Dhagamwar wrote a letter to the judge of India to possess the
case reheard.

Facts of the case

Mathura, a young orphan, lived together 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 idea 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. After their statements were recorded, everyone began walking
out at about 10:30 pm. The first appellant Ganpat asked Mathura to attend
inside the police headquarters. 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. After he was done, the second appellant Tukaram came and
fondled together with her genitalia. He tried to rape her too but failed, as he
was heavily intoxicated. After being reunited with her family and friends,
Mathura narrated this incident to them. On being medically examined it had
been 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. She was
examined by Dr. Shastrakar on March 27, on whose advice an FIR for an
equivalent was filed. After an extended battle, The Supreme Court acquitted
the appellants in 1979.

SESSION JUDGE POV

The Sessions Judge acquitted the accused, as he believed that this wasn't a
case of rape but one among “consensual sexual intercourse”. The perversity
of his logic is clear when he implies that Mathura being “habitual to sex” may
need invited Ganpat to satisfy her sexual needs and thus her consent was
voluntary. He further used this line of argument to justify the presence of
semen on her clothes to possess come from her act of getting sexual activity
with some person other than Ganpat. By this statement, the Judge is
implying that Mathura was so eager that she had sexual activity with
‘someone’ between the hours of this incident and her checkup. However, in
justifying the semen on Ganpat’s clothes he said it had been thanks to
“nightly discharges”. It is enigmatic on why the Court had such double
standards supported gender roles. As per Section 375(6) of the Indian legal
code, sexual activity with a lady below the age of 16 whether with or without
her consent qualifies as rape. 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. He further held
that so as to sound “virtuous before Ashok” Mathura fabricated a story of
being raped. The sexist tone during this judgment is startling because the
Judge assigns a selected role to Mathura by implying that she must concoct
a story so as to prove her chastity to her lover. In his words Mathura was “a
shocking liar whose testimony was riddled with falsehood and
improbabilities.”

BOMBAY HIGH COURT POV

The Bombay supreme 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 within the same police
headquarters, the probabilities of her making advances on them was highly
improbable. Further, they were during a position of authority and any
resistance to them could prove detrimental to her or her brother. This is a
transparent case of passive submission caused by the threat of injury. The
fact that the constables confined her to the police headquarters alongside
her act of instantly narrating the incident to her family shows a transparent
lack of consent. The Court again rightly held that the “absence of semen on
the vaginal smears and pubic hair” was due to the very fact that she was
examined 20 hours after the incident and it's presumably for her to possess
taken a shower within the meantime. Although the supreme court rightly
convicted the accused there have been some parts of the judgment that
were paradoxical. 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? Secondly, while quashing the acquittal of
the accused, the supreme court stated that these two “gentlemen” were
absolute strangers to Mathura and it's 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 mentioned them as
gentlemen.

SUPREME COURT POV

Finally in 1979, the Supreme Court overturned the conviction of the supreme
court and acquitted the accused. The Supreme Court agreed with the
Sessions Judge that this was a case of consensual sexual activity. On now
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.” Firstly, it's astonishing
that this Court has equated the shortage of resistance to consent. Even if
Mathura tried to resist, she would be powerless ahead of two well-built,
strong constables and thus impossible for “marks of injury” to be carved
onto her body. While the Court read into Section 375(3) of the IPC to carry
that her consent wasn't obtained by putting her in fear as she didn’t object
when she was removed from her family, it excluded Section 375(2), which
states that rape is sexual activity with a lady without her consent. Secondly,
it's questionable on how the Courts are certain that Mathura didn't shout for
help. The doors were locked all throughout when Ganpat took Mathura up to
the washroom to rape her. 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? 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”. In this regard, two fallacies commonly
used in English language have been committed, ‘Argumentum ad Hominem’
and ‘Hasty Generalization’.
This essentially means instead of deciding this case thereon merits, the
Court constantly attacked the character of the victim and came to
conclusions with none link to its premise.
It believed that Mathura was so promiscuous that she couldn't abandoning of
any chance of getting sexual activity even when her sibling Gama, employer
Nushi and beloved Ashok were expecting her right outside the police
headquarters. 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.
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 ascertain their faces clearly because the lights were transitioned.
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. The Supreme
Court acquitted both the accused stating that this alleged intercourse was a
“peaceful affair”.
 AFTERMATH OF CASE
This case stimulated great passions and resentment amongst people within
the society. A law more sensitive to the emotions of the victims had to be
drafted, that protected their human rights and dignity. 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
doesn't consent to sexual activity, then the Court would presume that she
did not consent. Section 376 of the IPC was also amended, making custodial
rape an offense punishable with not but 7 years imprisonment. This section
shifted the burden of proof from the victim to the offender, once sexual
activity is established. The amendment also banned publication of victims’
identities and held that rape trials should be conducted as in-camera
proceedings. Even though the Parliament has amended rape laws so as to
serve justice, judicial interpretation of those laws has done the precise
opposite. While there are several judgments post the 1983 Amendment Act
that are successful in serving justice to the victims, there are still an equal
number that are perversely drafted like the Mathura Rape Case.

Cases
In Mohd. Habib v. State (1989), the Delhi supreme 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 have been
bite marks on her body and there was an eyewitness to the present entire
incident was also considered inconsequential to this Court.

In Bhanwari Devi (1992), the court held that the accused couldn’t be held
guilty of rape even after the semen of 5 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”.

CONCLUSION
Even though rape laws in India are reformed over time, the occurrences of
rape keep increasing per annum. Besides causing tremendous physical injury
to the victim, this crime has devastating psychological effects also like 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's the
attitude and mentality of men, just like the Supreme Court Judges within the
Mathura Rape Case that needs reformation.

“They are all innocent until proven guilty. But not me. I am a liar until I am
proven honest.” -Louise O’Neill