AIDWA is deeply concerned about the recent judgement of the Delhi High Court in the Sharda rape case. In this case the High Court acquitted the accused of rape charges on the basis of certain patriarchal and regressive reasoning.
In this case, the court held that though there was “forceful penetration” on the vaginal orifice, the lack of other marks of injury on the body of the deceased woman showed that there was no protest by the deceased. The court further held that the act of intercourse did not amount to rape and hence the intercourse was not against the consent of the deceased woman. This reasoning is totally contrary to the law. A proviso to the recently amended Section 475 of the IPC clearly states that a woman who does not physically resist the act of penetration shall not by the reason only of that fact be regarded as consenting to the sexual activity.
The judgement is also against a recent pronouncement of the Supreme Court that mere absence of marks on the body of the victim should not lead the courts to a presumption of consent.
Secondly, the court’s inference that since the woman had drunk alcohol she consented to the intercourse states the law wrongly. One of the grounds when consent is vitiated is when a woman is intoxicated.
Thirdly, the Delhi High Court also mentions that victim was between 65-70 years of age and had reached menopause. This cannot under any circumstances have bearing on the culpability or the lack of it of the accused.
The judgement thus shows certain patriarchal biases and is regressive and AIDWA demands that it be reviewed.