'Upper Caste Men Don’t Rape', 'No Skin Touch Means No Assault': 6 Court Observations That Defy Logic

The Chhattisgarh High Court on Thursday acquitted a man of marital rape and ruled that sexual intercourse between legally wedded man and woman is not rape even if it is by force or against the wishes of the wife. The court held that “sexual intercourse or sexual act by a man with his wife, the wife not being under 18 years of age, is not rape.”

This is not the first time that a court has made controversial observations about rape, marital violence and victims of rape and sexual assault during the trials. Here’s a look at similar cases from the past.

1. Gauhati HC Grants Bail to ‘Talented’ IIT Student Accused of Rape

On August 23, the Gauhati High Court granted bail to an IIT B.Tech student accused of sexually assaulting a fellow student, after observing that he is a “talented, young student and a future asset to the state” of Assam. Justice Ajit Borthakur said that there was a “clear prima facie case” against the accused, but there is “no possibility” for him to influence witnesses or tamper with the evidence as the investigation is complete.

“However, as the investigation in the case is complete and both the informant/victim girl and the accused are the State’s future assets being talented students pursuing technical courses at the IIT Guwahati, and are young in the age group of 19 to 21 years and hail from two different States, continued detention of the accused may not be necessary,” the court said.

2. ‘Unbecoming of Indian woman’: Karnataka HC to Survivor Who Fell Asleep after Incident

Granting advance bail to a rape accused, the Karnataka High Court in June 2020 expressed its resrvations about the genuineness of the complainant’s case while observing that her explanation that “after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman”. The court also found it difficult to believe at this stage that the complainant was subjected to rape on the false promise of marriage “in the given circumstances of the case”.

3. The Woman’s No May Have Meant a Yes: Supreme Court

In January 2018, the Supreme Court upheld the acquittal of Peepli Live co-director Mahmood Farooqui in a rape case, saying that the woman’s no may have in fact meant a yes. “Instances of woman behaviour are not unknown that a feeble ‘no’ may mean a ‘yes’,” the court said.

It further said that in cases where the two parties are known to each other and have had physical relations, it would be “really difficult to decipher whether little or no resistance and a feeble ‘no’ was actually a denial of consent.

4. Groping Without ‘Skin to Skin’ Contact Not Sexual Assault: Bombay HC

In January this year, the Bombay High Court ruled that groping without ‘skin to skin’ contact is not sexual assault as defined under the Protection of Children from Sexual Offences (Pocso) Act. The ruling was pronounced by Justice Pushpa Ganediwala. In a another judgment, the Nagpur bench of Bombay High Court ruled that there must be physical contact “i.e skin-to-skin contact with sexual intent without penetration” and mere groping would not amount to sexual assault under the Pocso Act. The court reasoned that touching a minor’s chest would not amount to sexual assault “unless the accused removed the top worn by the child or slid their hand within the child’s garment.”

5. Upper Caste Men Don’t Rape Women From Lower Castes: Rajasthan court

The 1992 Bhanwari Devi sexual assault case from Rajasthan led to massive outrage due to the controversial statement made by the judge. Bhanwari Devi, who belonged to the Kumhar (potter) caste and worked as saathin (friend) for the state government’s Women’s Development Programme (WDP), alleged that she was raped by five men belonging to the affluent Gujjar caste. A trial court in 1995 ruled that Bhanwari was not raped as “an upper-caste man could not have defiled himself by raping a lower-caste woman.”

The judge made some other bizarre remarks such as a village head cannot rape, men of aged 60 to 70 cannot rape, and a man cannot possibly indulge in a heinous crime of that nature in front of his own relatives (two of the accused were uncle and nephew in relation).

6. Tarun Tejpal Case

This was a case that captured public attention in 2013 and the years that followed due to the high-profile nature of the accused and the seriousness of the allegations made. A young journalist at Tehelka magazine made serious allegations against the editor-in-chief Tarun Tejpal about an incident took place on the night of November 7 and November 8, 2013, during Tehelka magazine’s Think Fest in Goa. The alleged offence of rape happened in a lift and it lasted for about two minutes.

At the outset, Section 53A of the Indian Evidence Act bars the defence from referring to the past sexual conduct or history of the victim unless it has a direct bearing on the case, especially in trials pertaining to sexual assault. But the complainant in her cross-examination was asked whether she consumes alcohol or cigarettes, her views on consensual sex, whether she indulges in conversations with sexual overtones with friends and acquaintances. In the judgment, past sexual history of the complainant has weighed heavily on the mind of the judge. The unfettered access to her WhatsApp chat and selective inclusion of hearsay evidence are some of the key reasons for which Tejpal was acquitted. The shoddy job of the investigation officer was the final nail in the coffin.

The trial court gave the benefit of the doubt to journalist Tejpal and acquit. It said that there was no evidence to support the allegations made by the complainant woman.

The verdict led to a controversy and the Goa government urged the court to expunge portions of the evidence that do not adhere to sections of the Indian Evidence Act that bars the defence from referring to any past sexual conduct of the victim in a case of sexual assault. It contended that the Sessions Court had “scandalously and voyeuristically” recorded details of the victim’s sexual history in its 527-page judgment.

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