SCHOOL OF LAW

B.B.A., LL.B. (Hons.)/ Fifth semester – September 2019

INTERPRETATION OF STATUES

Submitted By : Submitted To :
Mayank Srivastava Ms. Ishnoor
(A058) Assistant Professor

Introduction
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Since the word ‘rape’ was first mentioned in the Indian Penal Code, the way our legal system deals
with the crime of rape has changed repeatedly. The first time ‘rape’ was mentioned in our legal
structure was when the IPC was written in 1860. Section 375 to Section 376E of the Indian Penal
Code refers to ‘sexual offenses’. It defined rape as sex without consent, with consent but under the
fear of death or with consent but under false pretences’. It also defined ‘statutory rape’ as sex with a
woman under the age of 16. It makes no mention of rape as a crime against a male, since Section 377
– the one that makes gay sex illegal – covers that already.

However, Section 377 criminalizes both participants while including male victims in Section 375
would have criminalized only the rapist and not the victim. This loophole discourages male rape
victims from complaining against their rapists because it would mean opening themselves up to
prosecution too. The 1860 version of the IPC also ignored sex without consent between a husband and
wife (aka marital rape), a clause that is missing from our anti-rape laws even today. The punishment
for gang rape and repeat offenders was harsher. All in all, the minimum punishment for rape was as
lenient as two years in prison (the same as perjury) and the worst-case scenario was a life sentence.

With the continuously changing definition of rape, the interpretation of the word ‘consent’ has also
changed, and has been interpreted differently through the years and cases.

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Judgement: I

Appellants: Tukaram and anothers

Respondents: State of Maharashtra

Court: Supreme Court of India

FACTS:

1. A 16-year-old tribal girl was raped by two policemen in the compound of Desai Ganj
‘police chowky’ in Chandrapur district of Maharashtra. Her relatives, who had come
to register a complaint, were patiently waiting outside even as this heinous act was
being perpetrated in the police station.
2. When her relatives and the crowd threatened to burn the police chowky down, the two
guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama. At the
Sessions Court, Mathura was accused of being a “liar” and since then she was
“habituated to sexual intercourse”, her consent was given.
3. The Nagpur bench of the Bombay High Court set aside the judgment holding that that
passive submission due to fear induced by serious threats could not be construed as
willing sexual intercourse.

Sessions Judge
The Sessions Judge acquitted the accused, as he believed that this was not a case of rape but
one of “consensual sexual intercourse”. He implies that Mathura being “habitual to sex”
might have 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 have
come from her act of having sexual intercourse with some person other than Ganpat. By this
statement, the Judge is implying that Mathura was so eager that she had sexual intercourse
with ‘someone’ between the hours of this incident and her medical examination.

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However, in justifying the semen on Ganpat’s clothes he said it was due to “nightly
discharges”. As per Section 375(6) of the Indian Penal Code, sexual intercourse with a
woman 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 in order to sound “virtuous before Ashok” Mathura fabricated a story of
being raped. The Judge assigns a specific role to Mathura by implying that she needs to think
of a story in order 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

The Bombay High Court distinguished between passive ‘submission’ and ‘consent’. It held
that since the accused were strangers to Mathura and her brother had just filed a case in the
same police station, the chances of her making advances on them was highly improbable.
Further, they were in a position of authority and any resistance to them could prove
detrimental to her or her brother.

This is a clear case of passive submission caused by the threat of injury. The fact that the
constables confined her to the police station along with her act of instantly narrating the
incident to her family shows a clear lack of consent.

The Court held that the “absence of semen on the vaginal smears and pubic hair” was because
of the fact that she was examined 20 hours after the incident and it is presumably for her to
have taken a shower in the meantime.

The High Court quashed the session’s court’s judgement.

Held:

Finally in 1979, the Supreme Court overturned the conviction of the High Court and
acquitted the accused. The Supreme Court agreed with the Sessions Judge that this was a case
of consensual sexual intercourse. On this point 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.”

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Firstly, Court has equated the lack of resistance to consent. Even if Mathura tried to resist,
she would be powerless in front 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 hold that her consent was not obtained
by putting her in fear as she didn’t object when she was taken away from her family, it
excluded Section 375(2), which states that rape is sexual intercourse with a woman without
her consent.

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”. It believed
that Mathura was so promiscuous that she could not let go of any chance of having sexual
intercourse even when her sibling Gama, employer Nushi and beloved Ashok were waiting
for her right outside the police station.

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,
statements made in traumatised condition could give birth to an error was also ignored.

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 see their faces clearly as the
lights were switched off. 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”.

Rule of Interpretation Applied:

In this case literal rule is applied as the judge didn’t try to understand what were the
conditions under which Mathura didn’t resist, and in fact called it, the lack of resistance
consent. They didn’t try to understand that consent differs case to case. Also, her prior sexual
relationship played as a bias against her in this case.

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Judgement: II
Appellants: Mahmood Farooqui

Respondents: State (Govt. of NCT of Delhi)

Court: High Court of Delhi

FACTS:
1. Farooqui allegedly forced himself on the Columbia University researcher during a
party at his house in New Delhi in March 2015. The complainant had approached
Farooqui through a common contact for help with her thesis on Indian sects. She
wanted information on the Gorakhnath sect in eastern UP. The woman said she
became well-acquainted with him after a few meetings.
2. The woman returned to US soon-after the alleged rape and wrote an email to
Farooqui, who apologised for “misbehaving” with her. She later approached the Delhi
Police through diplomatic channels, returned to India and lodged a formal complaint
on June 19, 2015.

3. Farooqui was convicted by a special fast track court in what was claimed to be the
first rape case that recognised forced oral sex. Farooqui immediately challenged the
guilty verdict in the high court.

Contentions:

Petitioner:

1. The woman contested that she said no multiple times, and since she was scared that
what might happen to her, she “went along” with the accused, and even faked an
orgasm.
2. She wrote an email explaining how hurt she was by his act and asked for an apology,
which she even got, clearly proving the accused’s guilt.

Respondent:

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 1. Farooqui contested that he couldn’t tell that there was an absence of consent since the
‘no’ was very feeble and she even had an orgasm. There was no way for him to tell
that it was a fake orgasm and she didn’t enjoy it and all of this happened without her
consent.
2. Because of the previous relationship between the two, accused had reason to believe
that she was interested in him.

Held:

The bench pointed out how the two (Farooqui and the woman) weren't strangers to each
other. Justice Bobde observed, "She knows him [Farooqui] well enough to make a drink for
him." The bench went on to question the lawyer, "How many times did the complainant visit
the house of Farooqui alone." "Sometimes a feeble no, means yes." The court believed that
because the complainant faked an orgasm towards the end of the sexual activity, it gave the
defendant a presumption of consent.

Rule of Interpretation Applied:

In this case golden rule is applied because the court expanded the definition of the word ‘no’.
The court went ahead to explain how a feeble no is actually yes, and prior relationship
between the plaintiff and victim worked as a bias against the plaintiff.

Judgement: III
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Appellant: State of Maharashtra and Another

Respondent: Madhukar N. Mardikar

Court: Supreme Court of India

FACTS:
1. The respondent, Madhukar Narayan Mardikar, was serving as a Police Inspector,
Bhiwandi Town Police Station in District Thana of Maharashtra State in November
1965. On November 13, 1965, between 8.15 and 8.45 p.m. he allegedly visited the
hutment of one Banubi w/o Babu Sheikh in uniform and demanded to have sexual
inter-course with her. On her refusing he tried to have her by force.
2. She resisted his attempt and raised a hue and cry. Her husband and neighbours
collected outside the hutment. The hutment was about a furlong away from the police
station and about 100 yards from Kuwari's bungalow. After people from the vicinity
collected at the place of occurrence, the respondent rushed to Kuwari's bungalow and
telephoned the police station to rush police aid. PSI Ghosalkar who received the
phone call rushed to the place of occurrence in a police jeep accompanied by PSI
Wadekar and other policemen.
3. On reaching the scene of occurrence they found the respondent in uniform standing at
some distance from the hutment of Banubi. They also saw an agitated Banubi near her
hutment. The respondent directed that the woman be taken to the police station as she
had abused him. She was taken on foot to the police station by Head Constable
Kulkarni and Police Constable Desale.

Held:

The Court Observes that since Banubi is an unchaste woman it would be extremely unsafe to
allow the fortune and career of a Government Official to be put in jeopardy upon the
uncorroborated version of such a woman who makes no secret of her illicit intimacy with
another person. She was honest enough to admit the dark side of her life. Even a woman of
easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So
also it is not open to any and every person to violate her person as and when he wishes. She is
entitled to protect her person if there is an attempt to violate it against her wish. She is

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equally entitled to the protection of law. Therefore, merely because she is a woman of easy
virtue, her evidence cannot be thrown overboard. At the most the officer called upon to
evaluate her evidence would be required to administer caution unto himself before accepting
her evidence.

Rule of Interpretation Applied:

In this case golden rule is applied and the victim’s previous sexual relationships and her
image didn’t affect court’s judgement, instead court talks about how the character maybe
relevant to her job, but not if any man tries to violate her because of the unchaste image of the
victim.