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The comments made in an anticipatory bail application passed by Justice Krishna Shripad Dixit of the Karnataka High Court have started a furore, with the legal fraternity and common people stunned at the Judge's perceptions.
Justice Dixit's remark that it was "unbecoming of an Indian woman" for a victim alleging rape to have dozed off after rape was committed, was termed as unacceptable and "misogyny at its worst".
What is the controversy?
In Rakesh B. v State of Karnataka, the question before Justice Dixit was whether the accused in a rape case had the right to be allowed anticipatory bail where he expressed:
“…the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they are ravished.”
In the order, the judge additionally inquired as to why she went to her office at 11:00 PM and why she devoured drinks with the accused and permitted him to remain with her till the following morning.
The comments in general question about the claim of rape by the complainant and propose that her relationship with the accused could have been consensual. One might say, the comments harm her character, without sparing her a chance to protect herself.
The Verma Committee Report on Amendments To Criminal Law (2013) regarding the matter of generalizations to be abstained from during rape trials.
The report suggested the inclusion of Section 53A in the Indian Evidence Act, as proposed by the 42nd Law Commission. Section 53, as it presently stands, should state as follows:
In a prosecution for rape or attempt to commit rape where the question of consent for sexual intercourse or attempt to sexual intercourse is at issue, evidence of the character of the prosecutrix or a previous sexual experience with any person other than the accused shall not be on the issue of such consent or the quality of consent.”
The report depends on the Supreme Court's judgment in Shri Bodhisattwa Gautam v. Shubra Chakraborty to recommend that an enormous number of women avoid reporting rape cases to the police since they dread humiliating and harsh treatment by doctors, legal personnel and interrogating defence lawyers.
The report is evident that the disposition of the victim must be disposed of. Justice Shripad's comments conceive that an Indian lady, whenever violated, would not act like a typical individual, but shall display a feeling of disgrace or shame.
In considering "Indian women" as not the same as some other ladies, Justice Dixit has accidentally bought in to the honor-shame theory.
Similar instances
In a marital suit, Karnataka High Court Judge, Justice K Bhakthavatsala once told a woman lawyer that she should take up such cases after getting married.
He additionally allegedly told a victim of physical abuse that "women suffer in all marriages".
In Raja and Ors v. State of Karnataka, Justice Amitava Roy offered comparable remarks while ignoring the testimony of a rape victim. Acquitting the accused, Justice Roy wrote in his judgment:
“Her (victim's) conduct during the alleged ordeal is also unlike a victim of forcible rape and betrays somewhat submissive disposition…The medical opinion that she was accustomed to sexual intercourse when admittedly she was living separately from her husband for one and a half years before the incident also has its own implication”.
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