This Case Commentary is written by Akinyemi Rodiat Mercy, a Third-Year Law Student of University Of Lagos

DETAILS

COURT - SUPREME COURT OF INDIA

EQUIVALENT CITATION - 1979 AIR 185, 1979 SCR (1) 810

DECIDED - SEPTEMBER 15 1979

BENCH - A.D KOSHAL JASWANT SINGH AND PS KAILASAM

PARTIES

Petitioner : TUKARAM & ANOR

Respondents: THE STATE

ABSTRACT

Rape occurs when there is a form of forceful engagement in sexual activity. Every society detests the idea of rape, because it is highly against moral values, and it is harmful to society.

Rape has been one of the most dangerous and deadly crimes that have affected female children in many ways by inputting depression, low self-esteem, psychological and mental distress, and most times physical abuse as well. It is safe to say that most times, females do not get the proper justice they deserve as most societies don’t have a voice against rapists, societies see it as a shame and a stigma, and they would rather keep to themselves.

In these modern days, women are starting to find their voices against rape and the rapist, be it through the law or protest, what matters is that “ women need to be free from “sexual assault” which puts their mental health at state.

INTRODUCTION

In this case, the court took it upon itself to decide strictly with the use of Section 376 of the Indian penal code as a guide to avoid taking justice into its hands. The provision of the law provides thus; “ commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine “.

Under Section 375 of the Indian Penal Code, rape is defined as "sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age.

Imperatively, no man is allowed to sexually abuse any woman or forcefully have sexual intimacy with a woman without her consent, rape as a crime is not allowed in India as it is considered a big crime, and its penalties are very strict.

FACTS OF THE CASE

The case of Tuka Ram & Anor v The State reflects the issue of a young girl ( Manthura ) who lives with his brother Gama in the village where they work as laborers for the people in the village, precisely.

Manthura was a maid to Nushi, who had a younger brother called Ashok. Unknown to Nushi Manthura and Ashok were in a relationship and they had the intention to get married to each other, without the knowledge of Gama after some time Gama reported to the court that Manthura had been kidnapped in the year 1972 when they took the case to the courts, Nushi’s were present in the court when the case arrived and at the end of investigations, Nushi family were told to go back home, and Manthura should stay back at the cottage in the night. It was reported that Gumpat forced Manthura to a latrine at the back of the court where he raped her. After a while, Tukura was also seen at the same venue where he tried to also rape Manthura but he could sue to his intoxicated state. Another policeman was able to figure out that something was going on at the venue due to the flashes of Tukura’s light and he was arrested .! The victim was taken to a doctor for confirmation, it was reported that she has a loose private part, and no stranger or forceful entrance has been made into her private part no physical attack was detected.

When the case got to court to the magistrate court, the judge held that Manthura was a big liar. She wasn’t raped and she was not below 16 at the time issue occurred. The case was further taken to the Bombay High Court for investigations to get justice. When the matter got to the eye courts, courts decided that Gum Bath was responsible for the contention against him, he ruled under Sections 376 and 354 of the Indian penal code. The case was further taken to the Supreme Court.

ISSUES

Whether the victim's submission subject to the threat? regarding the provision of the law against passive submission to sexual acts?

ARGUMENTS & JUDGEMENTS

Strictly, looking at the facts of the case, it was explicitly expressed that the victim, in this case, was forced to have sexual intercourse with the defendant, which is against the provision of the laws of India it is safe to say that the victim consented to the sexual activity because of fear or threat. Under section 374 of the Indian penal code, no woman should be forced to consent to any sexual activity, and hence, may lead to Life imprisonment, or several years of imprisonment, looking at the facts of this case the victim was not only forced to have sex with the first defendant, but she was also molested by the second defendant, which could’ve caused mental stress, or, psychological distress to her.

On the other end, the defendant must have explained to the court that no marks or bruises were found on the body of the victim. Also, the victim has a very loose private part, which must have been the contention against the victim at the court. Hence, the victim was not only taken from her relatives without their knowledge but it was also not in the knowledge of the police, which is critically against the provision of the law, against the victims, and even against the relative’s will. It is safe to say the victim was forcefully taken to the latrine, and Gunpat forcefully had his ways with her, including Tukura who molested her.

Looking at the doctor's report, it was stated that Siemens was found in the body of the defendant, and that of the big team, this simply means that something authentically happened, which is safe to say that it was forcefully arranged through threats to the victim.

It is inexperienced for the court to have ruled against victims Both in the High Court and at the Supreme Court. Even when it was obvious that the victim was forcefully dragged to the private place, at a deadly hour, the victim asked to stay back at the court for an unknown reason, also, the light was taken off the private place where the incidents occurred. All this one way or the other adds to the point to call it rape.

The Supreme Court ruling on the fact that no bruises or physical hits were detected on the victim, was not accountable enough to judge against the victim, because this is against human rights, and it is against her dignity as a human who has rights under the law of the country.

Ruling the clocks associated between consent and submission, saying that all consent for submission all submission is on the consent this case, it is imperative to know that visiting some shit to the self, without a constant, because I submission was due to a threat by the defendant. Which is totally against the provisions of the penal code of India.

From the provision of the court, and the declaration of the court? It is safe to say that it was against justice, and it was kindly inhuman to the victim, to mention to this led to a lot of changes in the provision of rape punishment in the country, also for the growth of the society, and for the protection of every female, this would be to sustain a solid and outspoken voice for every young female out there.

Speaking from the fact of consent and submission, it is obvious that the victim was barely 14 to 16-year-old child when this incident occurred and she was not in her capability( not capable enough) to fight back against two men who forcefully had their way with her, and this is even enough to get her the justice she deserves by the court of law but on the contrary, she was not only called a filthy liar but she also denied of her justice.

CONCLUSION

In conclusion, the Supreme Court wasn’t considerate enough in its decision and it was ridiculous to have not been able to differentiate between consent and submission, passive consent, and active consent. However, injustice that was laid on the victim led to a lot of changes and amendments in the law of the country. But this still did not dilute the fact that injustice has been done to an innocent victim, leaving a criminal to walk freely among the free people.

The laws are expected to be shields and not swords, especially when it comes to protecting innocent victims.