New Delhi: An Allahabad High Court order last week, denouncing the language and nature of allegations made by a wife against her husband, has again raised questions on the “patriarchal” and “gender insensitive” language used by some judges while deciding cases.
The high court was hearing a case relating to alleged sexual violence and dowry harassment on 13 June. The single bench of Justice Rahul Chaturvedi, while delivering the judgment, said that the woman had exaggerated the incident and “vomited snide before the court (sic)”.
The complainant had accused her husband and in-laws of dowry harassment and “unnatural” sex.
Justice Chaturvedi’s is not the only judgment in the past few months, or years, that has drawn criticism for being “sexist”.
Court orders from across India have been called out for allegedly propagating stereotypes, engaging in moral policing, character assassination of victims, and attempting to create the “ideal rape victim”, with undertones of misogyny, patriarchy, and casual sexism.
Advocate Aparna Bhat, who last year filed a petition in the Supreme Court against a Madhya Pradesh High Court order that granted bail to an accused in a molestation case — on the condition that he would get a rakhi tied by the complainant — told ThePrint that it’s incumbent to hold training programs to sensitise judges on gender issues.
Pointing to the SC judgment in the case, which quashed the MP HC order and emphasised the need to have such training sessions, Bhat said, “Some state judicial training academies have begun, but they should be done more frequently.”
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The Allahabad HC case
The complainant in the Allahabad case had alleged that her father-in-law and brother-in-law sought sexual favours from her, that she was locked in the bathroom by her husband on multiple occasions, and that she was forced to abort a pregnancy.
In the order, the court took a dig at the mental condition of the complainant and observed that she had no “shame or hitch of any sort”.
“The graphic and vivid descriptions of the incident without any shame or hitch of any sort, speaks out volume of mental condition and amount of venom and poison in the mind of the informant (sic),” Justice Chaturvedi said.
According to the order, “The language of the FIR. should be decent one and no amount of atrocities faced by the informant, would justify her to use such type of castic expressions (sic).”
“In our traditional Indian family, where they are residing in a joint family with unmarried son, it is highly improbable and difficult to digest the allegations of demanding sexual favours from her daughter-in-law by father-in-law or brother-in-law (sic),” the judgment said, as it discharged the father-in-law, but allowed the case against the husband to continue.
Senior advocate Vibha Datta Makhija, speaking to ThePrint, discussed the role of FIRs in the delivery of justice, and argued that the courts must exercise restraint while making observations.
“The truthfulness of an FIR falls in the domain of investigation and trial. The law gives the accused a remedy against false and malicious FIRs in the form of a defamation action. Any over-broad observations from courts which dissuade victims from disclosing true and correct facts, however abhorrent to the human sensibilities, will serve as active deterrent to the reporting of genuine cases also,” said Makhija.
“Unnatural in our culture”
Earlier this year, the Allahabad High Court had granted anticipatory bail to a father-in-law in a rape case, observing it was “unnatural” for a family member to be involved in a case of sexual violence.
The complainant in that case had alleged that she had been alone at her brother’s house when the two accused, one of them her father-in-law, came and enquired about her brother’s whereabouts. On being told that her brother was not at home, the two men allegedly raped her.
“It is quite unnatural that a father-in-law shall commit rape of his daughter-in-law, along with other person in our Indian culture (sic),” the court had observed prima facie.
The idea that such actions are “unnatural”, however, is contradicted by data from the National Crime Records Bureau, which consistently suggests that in more than 93.1 per cent of rape cases, the accused are known to the victims.
‘Unbecoming of Indian woman’, ‘state’s future asset’
In a rape case, the Karnataka High Court had in 2020 observed that the victim falling asleep after the perpetration of the act was “unbecoming of an Indian woman”.
“This is not the way our women react when they are ravished,” the judge had noted
The Gauhati High Court had granted bail to the accused in a rape case last year, despite a “clear prima facie” case, on the grounds that he was the “state’s future asset”.
The high court had observed that “both the informant/victim girl and the accused are the state’s future assets being talented students pursuing technical courses at the IIT, Guwahati, who are young in the age group of 19 to 21 years only and further, they are being hailed from two different states, continuation of detention of the accused in the interest of trial of the case, if charges are framed, may not be necessary. (sic)”
In 2019, the Punjab and Haryana High Court granted bail to three rape convicts for as long as their appeal against conviction remained pending, claiming that the complainant’s statement suggested “misadventure stemming from a promiscuous attitude and a voyeuristic mind”.
In 2019, the Supreme Cour had observed in a kidnapping and rape case that since the victim was not “hurrying back home in a distressed, humiliated and a devastated state”, it was “unusual”, and the veracity of her testimony was suspect.
A 2009 Supreme Court judgment, in a case of abduction and rape of a minor girl in 1995, had called the appellant a “dissolute lady” and a “woman of easy virtues”.
There have been cases where courts have asked the accused if they would marry the victim, or in one case, granted bail to an accused — a washerman — in a molestation case on the condition that he would wash and iron the clothes of all women in the village free of cost, as an act of community service.
Makhija said, “Courts must be careful that personal inferences must not creep into orders, which will lead to confusion in applying the detailed procedure provided in the Criminal Procedure Code.”
Akshat Jain is a student of the National Law University, Delhi, and an intern with ThePrint
(Edited by Poulomi Banerjee)
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