Nineteen-year-old Naina was made to take the place of her mother who had died of TB in 2004. Naina not only looked after her younger siblings, but had to also meet the sexual needs of her father. If she resisted, he would threaten to not provide money. As she grew up, the only solace was her boyfriend.
In 2012, when Naina was in Class 9, with the help of a teacher she was able to reach an NGO, which rescued her and her siblings and placed them in a government shelter. There the abuse of her younger sister, 14, also came to light. After about a month, the children were sent to their father’s brother in a village in Bihar where they were treated as beasts of burden. To get rid of Naina, the uncle arrangwed her marriage with an old widower. But Naina escaped, returned to Mumbai and her neighbours placed her in another home. Naina just completed her Class 10, but, after 35 court dates, the trial is yet to start.
There are several such cases which are “in progress.” In Bhiku Tukaram Jadhav vs Maharashtra case, decided by the Bombay HC in 2012, the father had two wives, and the victim was a child from the first marriage. Her schooling was stopped after Class 3. The girl was made to sleep alongside her father due to space constraints. After the first sexual abuse, which happened when she was barely eight, she washed her blood-stained clothes herself as she was scared as her father had threatened to kill her if she mentioned it to anyone. The abuse continued until her pregnancy was detected. She was sent to a relative’s home for delivery, but that lady filed a complaint. The girl was 34 weeks pregnant and the DNA report of the foetus matched the father’s.
Instances of sexual abuse within the family have just starting crawling out of homes. In most cases the father is the sole breadwinner which makes reporting hazardous. In order to save the father, the child is pressured into giving false evidence. The alibi that the father was only doing his duty of trying to save his daughter from immorality by keeping her away from boyfriend and she is making the rape accusation in anger is accepted by courts.
The caution expressed by Justice S.P. Garg in Balbir Chand vs State (NCT of Delhi), that a 16-year-old who is dependent upon her father would not make false accusation is not reflected in most judgements. The threats issued by the father are taken seriously by the child and hence it takes a long time for the offence to be reported. Often the child is disbelieved by the police as well as the courts.
As Justice Rajiv Shakdher of the Delhi HC had commented in 2009, while convicting a father who had been extremely abusive towards his wife and had eventually thrown her out of the house, and had raped his 10-year-old daughter left behind with him: “…The Prosecutrix’s humiliation is compounded when it is her own father who is the perpetrator. When it does get reported, they are subjected to the same gruelling cross-examination in an unfriendly court room atmosphere. The result is incoherent testimony which is then torn to shreds by a skilful lawyer trained to pick holes.”
The judge recommended that in certain cases the role of judges should be changed — from being neutral umpires in an adversarial system to an inquisitorial one, and the testimony of the victim should be accepted to bring about conviction. But this is seldom done and the courts look for corroborative evidence.
In a 2009 case, where a child of around nine years was raped by her father, it was argued that the girl had falsely implicated her father because she had a grudge against him for deserting her mother. Relying on the medical report, the court convicted him while commenting: “There is no dispute about the fact that the prosecutrix is aged between nine and 10 years. The medical report shows that her hymen had been torn and she is a victim of habitual sexual intercourse. It is not the defence of the accused that the hymen of his daughter has been torn for any other reason except the hard fact that she has been subjected to sexual intercourse.”
But if the medical report does not establish sexual assault through a ruptured or absent hymen and an elastic vagina, judges find it difficult to convict. A 2013 judgement of a division bench of Justice Kailash Gambhir and Justice Indermeet Kaur of teh Delhi HC in Atendar Yadav’s case, held that a torn or absent hymen and an elastic vagina do not conclusively prove that there has been sexual abuse since this can also be due to cycling or swimming.
Interestingly, the defence lawyer relied upon not just the sexist Modi’s Medical Jurisprudence and Toxicology, but also the report of the Justice J.S. Verma Committee, following the gruesome Delhi gangrape, which is considered progressive. The defence lawyer argued that since there was no injury and since two fingers could be inserted only with difficulty, the conclusion must be drawn in favour of the accused. Ironically, the judge relied upon the argument that absence of injuries prove the innocence of the accused.
Exaggerating discrepancies in the evidence of the child, which the trial court had considered as minor, the high court concluded that it was a false case, instigated by the divorced wife to wreak vengeance upon the husband as he had remarried after the divorce. It is important for lawyers and judges to reconsider their role in such cases, and for campaigners and experts to understand the different ways in which their studies and reports are being used to cause further injustice to women and their sexually abused children.
The writer is a women’s rights lawyer
(This concludes the two-part series)
