Marital Rape- Judge Remarks Physical Relations between Husband and Wife even if Forcible, Not Rape; Debate Regarding the Law Resurfaces

Additional Sessions Judge, Virender Bhat, while acquitting an accused of charges of rape, observed that the prosecutrix and the accused were legally wedded husband and wife from 20.7.2012 and the physical relations between the two thereafter, even if against the consent of the prosecutrix, do not tantamount to offence of rape. While the statement has attracted widespread media coverage, bringing the law under scrutiny, rather than the judge who followed it in letter, would be prudent in this situation. It must be noted that even in the absence of Nikah, the court couldn't find convincing evidence incriminating the accused. The Court went to the extent of observing that these incidents of sexual intercourse appear to be consensual and acquitted the accused.

Furthermore, the Court observed that according to the rape law in the country, the accused can be convicted on the basis of sole testimony of the prosecutrix provided the same appears to be credible and trustworthy and inspires confidence of the court. The seriousness of the implications of this crime makes it the duty of the court to minutely scrutinize the testimony of the prosecutrix.

In the instant case however, the court found the testimony of the prosecutrix 'suspicious' and 'far from being credible'. Her version regarding most events, including the solemnization of nikah with the accused, seemed 'unconvincing and doubtful'.

The prosecutrix and her family were tenants at a house belonging to the accused person's father. The accused, Aftab Alam was charged, along with his father and brother with offences under sections 328, 366, 376, 506 and 509 of IPC. However, the latter two were acquitted by the court in April.

It was alleged that Aftab had spiked the aggrieved woman's drink and raped her when she was unconscious. The next day, the accused and the prosecutrix got married in the presence of a Maulvi. Thereafter, the accused raped her again at several occasions. He later burned the Nikah papers in front of her, threatening her that if she discloses the incident to anyone, he would send her nude photographs to his friends. Her family members however came to know about the incident during an argument between the two families regarding the rent of the house.

The court found lacunas in her testimony, with respect to the date of the incident and the subsequent conduct. The Judge found it 'highly unlikely' that any incident of rape must've taken place in the first instance as alleged by her.

It was asserted that the conduct of the prosecutrix in accompanying the accused voluntarily and willingly on the next day is also highly unnatural and goes against the prosecution case. It beats all imagination to say that a rape victim would voluntarily accompany the rapist on the subsequent date after the incident of rape.

The accused had contended from the beginning that the prosecutrix was falsely implicated in the case as she neither intended to pay the rent of the house to his father nor wanted to vacate it. The Court considered the defence to be probable and plausible.

The conscience of the court did not permit it to believe the version of the prosecution. Hence, the court ruled that the accused deserves to be given the benefit of doubt.

The decision once again resurfaces the debate with respect to law regarding marital rape in the country, as well the recommendations put forward by the Justice Verma Committee.

The ruling comes more than a year after the Indian Government made an effort to strengthen its rape laws and increased sentences for the perpetrators after the hue and cry over the brutal gang-rape and murder of a student on a Delhi bus. These changes were based on recommendations of the Verma Committee, headed by late Justice J.S.Verma. The Committee had advocated criminalization of marital rape as well but this was rejected due to apprehension that it would dent the institution of arranged marriages and lead to frivolous complaints.