Some of its findings illustrated the deeply entrenched patriarchal notions of those who interpret the Indian laws. To date, it is the only comprehensive research done on the judiciary’s perception of violence against women. In 1996, Sakshi, an NGO, released a study called ‘Gender and Judges’ in which it analyzed the views of 119 judges from all over India along with the experience of female lawyers, complainants and observation of courtroom trials. The patriarchal bias among the judges might be the cause of such interpretation. On appeal before the Supreme Court, it was held that : “ it couldn’t be inferred that the girl was under any fear or was subjected to any compulsion, and thus this could not justify the inference of any “passive submission.” As pointed out earlier, no marks of injury were found on the body of the girl, and their absence goes a long way to indicate that the alleged intercourse was with her consent and that the story of a stiff resistance having been put up by the girl is all false.”
In the judicial discourse, frequent reference was made to terms such as ‘a woman habituated to sexual intercourse’, ‘shocking liar’, ‘felt the need to appear virtuous’. The Sessions Court held that sex between her and the constable was consensual.
Ī similar phenomenon was noticed in the infamous Rape case of Mathura a young tribal girl who was raped by police personnel. It is conceivable that she may surrender and submit to save her baby. Pregnant women who resist rape may be subjected to such violence as may cause her to miscarry even if she prevents the rape. There were no injury marks on the bodies or the sexual organs of the accused.” “the prosecutrix was a fully grown up lady and habituated to sexual intercourse The opinion of medical experts shows that it is very difficult for any person to rape single handed a grown up and an experienced woman without meeting any stiffest possible resistance from her. In Pratap Mishra’s case the court observed that:
Judicial consent sex full#
Section 90 of the Indian Penal Code defines consent as free and intelligent consent, given without fear or fraud, and with a full understanding of the act to which the consent is being given. It is the combination of this presumption with judicial interpretation of the non-consent element that is problematic. Questionable assumptions of rape assert that women who wear provocative clothes, smoke, go out after dark or travel alone not only invite rape but desire intercourse and, therefore, consent is presumed. Instead, courts and legislatures have tried to manipulate evidence and other rules around an undefined issue, usually guided by questionable assumptions about rape complainants and rapists they have lost sight of and failed to protect interests served by criminalization of rape
Unfortunately, the legal community has not yet developed a principled standard of effective non-consent in rape.