HIMACHAL PRADESH NATIONAL LAW UNIVERSITY, SHIMLA

DISCIPLINE: LAW POVERTY & DEVELOPMENT

LAWS FOR CUSTODIAL RAPE IN INDIA: AN ANALYSIS

Submitted By: Submitted To:

Abhishek Bisht Dr. Chandrika

B.B.A. L.L.B (Hons) Assistant Professor of Law

4th Semester Himachal Pradesh National

Enrolment No.1120202156 Law University, Shimla
 ACKNOWLEDGEMENT

I Abhishek Bisht a second year law student would like to express my sincere gratitude
towards Dr. Chandrika ma’am, Assistant professor of Law, who always stand for us and
helped me at every possible step of my assignment. And without whose guidance I would not
have completed my assignment successfully. I would also like to sincerely thank Himachal
Pradesh National Law University, Shimla and its faculty for guiding and encouraging me at
every step of my assignment.

I would also like to extend gratitude to my seniors and friends who played an important role
and assisted me with the insights they had. Last but not the least I bestow my heartfelt
gratitude towards my parents and family members whose instant motivations kept me going
throughout the assignment.

ABHISHEK BISHT
B.B.A. L.L.B (Hons)
4th SEMESTER
 DECLARATION BY THE STUDENT

I, the undersigned solemnly declare that the present assignment on the topic “LAWS FOR
CUSTODIAL RAPE IN INDIA: AN ANALYSIS” is purely based on my own work as it
have been carried out during my study under the esteemed guidance and supervision of Dr.
Chandrika, Assistant Professor of Law, at the Himachal Pradesh National Law University,
Shimla and also from the help of various online websites and research papers. I would like to
make clear that the whole assignment is typed by me on my own words after taking the help
from the mentioned sources. It is important to note that plagiarism may be found as I haven’t
done the assignmentparaphrase. I further certify that:
1. The work contained in the assignment is not purely original but has been done by my
efforts and hard work.
2. The work is not submitted to any other organizations, journals, websites, etc.
3. I’ve followed the guidelines provided by the university in writing the assignment.

ABHISHEK BISHT
B.B.A. L.L.B (Hons)

4th SEMESTER
 ABBREVIATIONS

AIR All India Reporter

Dr. Doctor

& And

i.e. That is

CrPC Code of Criminal Procedure

IPC Indian Penal Code

k/as Known as

govt. Government

b/w Between

Sc Supreme Court

Scc Supreme Court Cases

v. Versus

e.g. Example

sec Section
 TABLE OF CONTENTS

INTRODUCTION………………………………………………………………….....2

HISTORY OF CUSTODIAL RAPE………………………………………………….4

CUSTODIAL RAPE……………………………………………………………………7

LEADING CASE LAWS………………………………………………………………9

LEGAL REFORMS……………………………………………………………………11

REFERENCES…………………………………………………………………………13
 INTRODUCTION

When it comes to how women are perceived in our culture, we live in a dichotomy. On the one
hand, we represent women as magnificent goddesses revered for their strength and valour, but on
the other, we enslave and marginalise them. Where her existence is exposed to a system that
teaches her there is an inherent hierarchy in which her life is always valued less than that of a
male.

We live in a world where a girl kid is denied the right to live her life simply because she is
female. In a society where, in 1983, the government had to ban sex determination services in
order to prevent people from punishing a girl kid for her gender.This systemic oppression of
women is so entrenched in the system that it begins even before she is born, ensuring that even if
she survives, her life would be marred by institutional biases and prejudices. The fact that India
has one of the highest rates of crimes against women demonstrates this. All forms of sexual
assault, rape, and female infanticide can be traced back to women's marginalisation.

The present assignment will look at the situation of women who are brought into police custody
in order to better understand the issue and gain a better understanding of how deep-rooted the
issue of society's treatment of women is. It is primarily a position in which she is under the
authority of another person and is expected to be kept safe. The space becomes incredibly
exploitative for the one taken into custody because of the power dynamic developed, where the
caretaker has complete control over every element of that individual's existence. It swings from
being a safe haven to being the source of their fear. Custodial rape is the most common example
of this power being exploited as a crime against women.The person is left with significant
emotional and psychological wounds as a result of this. This assignment will trace the history of
incarcerated rape, its psychological impact on victims, and the legal framework in place to
ensure that these victims receive justice.

When someone is under 'custody,' they are in the care, supervision, and control of another person
or institution known as the custodian. In most cases, the custodian has complete or near-
complete control over the individual, including mobility, liberty, food and water, and contact
with the outside world. The custodian has a high duty of care and protection in this relationship
of control and dependency. Rape is a significantly more serious breach in these circumstances,
because the aggressor takes advantage of his position of power over the woman, breaking not
only her bodily integrity but also her duty to care for and protect her. Detention by the state,

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through the police, army, and other security services, in police stations, lockups, prisons, and
interrogation centres, is the most common example of custody. Hospitals (both public and
private), mental health care institutions, refuge homes, and juvenile homes all fall under the
definition of 'custody.'

After a succession of incidents involving the rape of women in police custody became public in
the late 1970s and 1980s, the women's movement mobilised around the subject of custodial rape.
These incidents showed not only men's power over women, but also the power that uniformed
officials wielding State power and authority had over ordinary individuals, especially women.
The first law reform efforts rallied around these important episodes of incarcerated rape,
demanding changes in the law that would bring justice to the women involved.

Rape is not just a crime against a woman's person (victim), but it is also a crime against society
as a whole. It devastates a woman's entire psychology and forces her into a serious emotional
crisis. As a result, rape is the most terrible crime, as it infringes on the victim's core human and
fundamental right to life, as outlined in Article 21 of the constitution.The term rape comes from
the Latin word 'rapio,' which means 'to seize.' This denotes a compelled seizure. It is defined as
"the ravishment of a woman without her consent, by force, fear, or trickery," or "the forced
carnal knowledge of a woman against her will."

Rape is a crime against humanity as a whole. Rapists, on the other hand, have a plethora of
justifications and excuses for their actions. Women aren't meant to be a source of pleasure.
Women in our country are not safe due to modernism, irresponsibility, and a lack of
education.These are the variables that influence people's attitudes. The young people's mental
processes have been severely harmed, leaving everyone powerless. The concept of custodial
rapes was given prominence in 1983, and the term "custody" was broadened as a result.
Custodial rapes are those committed on the premises by a public servant. The crime was
disseminated due to hurdles or loopholes in prosecuting public workers and making them
accountable.

It is a sad fact that we are still using this quotation for women in our country after seventy-three
years of freedom.In front of rape victims, society poses several questions, such as:Concerning
her clothing, her friends, or why she is returning home so late? Before asking, uttering, or
making any concluding remarks, society must first comprehend the victim's circumstances. That
is the situation she is in right now. No victim wants to be stigmatised or scrutinised in their lives,
especially on campus.

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 HISTORY OF CUSTODIAL RAPE

In the late 1970s and 1980s, there were reports of police torture in the form of incarcerated rape
of women. For millennia, rape has been used as a tool of oppression. Such rapes in police
custody brought to light the persecutory treatment of women by uniformed authorities. They
would use cruel and inhumane methods to carry out their State's powers and authority.
Following the proclamation of the National Emergency in 1975-77, the government would
unilaterally exercise its powers by removing public accountability for its actions and restricting
people' liberties. This time illustrated how state authority may be exploited to violate personal
liberty, and it awoke society's and the judiciary's consciences.

In the Indian Penal Code, Section 375 defines rape.

Taking note of the inadequacy of law of rape and its failure to safeguard the rights of the innocent
victims against the heinous crime, the Parliament in 1983 and 2013 extensively amended the law of
rape to make the law more realistic.

Old Provision:-

“375. Rape. A man is said to commit” rape” who, except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling under any of the six following descriptions: -

 First- Against her will.

 Secondly- Without her consent.

 Thirdly- With her consent, when her consent has been obtained by putting her or any person
in whom she is interested in fear of death or of hurt.

 Fourthly- With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or believes
herself to be lawfully married.

 Fifthly- With her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or through

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 another of any stupefying or unwholesome substance, she is unable to understand the nature
and consequences of that to which she gives consent.

 Sixthly- With or without her consent, when she is under sixteen years of age.

Explanation- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of
rape.

Exception- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of
age, is not rape.”

After Amendment:-

A man is said to commit “rape” if he-—

penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her
to do so with him or any other person; or inserts, to any extent, any object or a part of the body, not
being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or
any other person; or manipulates any part of the body of a woman so as to cause penetration into the
vagina, urethra, anus or any of body of such woman or makes her to do so with him or any other
person; or applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him
or any other person, under the circumstances falling under any of the following seven
descriptions:—

 First—Against her will.

 Secondly—Without her consent.

 Thirdly—With her consent, when her consent has been obtained by putting her or any
person in whom she is interested, in fear of death or of hurt.

 Fourthly—With her consent, when the man knows that he is not her husband and that her
consent is given because she believes that he is another man to whom she is or believes
herself to be lawfully married.

 Fifthly—With her consent when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or through

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 another of any stupefying or unwholesome Substance, she is unable to understand the nature
and consequences of that to which she gives consent.

 Sixthly—With or without her consent, when she is under eighteen years of age.

 Seventhly—When she is unable to communicate consent.

Explanation I.—For the purposes of this section, “vagina” shall also include labia majora.

Explanation 2—Consent means an unequivocal voluntary agreement when the woman by words,
gestures or any form of verbal or non-verbal communication, communicates willingness to
participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the
reason only of that fact, be regarded as consenting to the sexual activity.

Exception I.—A medical procedure or intervention shall not constitute rape.

Exception 2—Sexual intercourse or sexual acts by a man with his own wife, the wife not being
under fifteen years of age, is not rape.

A very important case that led to definite amendments in the section is Sakshi v. Union of India and
Ors. (the Union of India, the Ministry of Law and Justice and the New Delhi Commissioner of
Police). Sakshi, an NGO focusing on violence against women, petitioned the Supreme Court of
India to declare that “rape” under India’s criminal rape law (Indian Penal Code, or “IPC”, section
375) includes all forms of forcible penetration. Sakshi claimed that the current interpretation of the
law, limited rape to forcible penile/vaginal penetration only and should also cover section 376
which include custodial rape.1

1
Soumya Singh, Section 375: Analysis of Provisions Relating to Rape www.academike.com

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 CUSTODIAL RAPE

Meaning of Custody-

In a broad sense, custody refers to the legal right to care for something or someone, particularly
children. It is the temporary ownership or care of another person's property. In a legal sense,
however, it refers to the state of being imprisoned or detained, usually while awaiting trial.

Meaning of Custodial Rape-

When a guy rapes a woman while she is in his care, it is known as custodial rape. Men who keep the
lady in captivity are usually in a position of strength and power. It is a very serious felony if they
use their position to sexually exploit women.In essence, while someone is in custody, they are under
the care, supervision, and control of another person or institution, known as the custodian. The
custodian has complete control over the person in his or her custody. Detention by the police, army,
and other security forces are some types of custody. During the 1975-77 national emergency, the
state assumed arbitrary and unrestricted powers, disregarded public responsibility for its acts, and
severely curtailed citizens' civil liberties. The perils of governmental power and how it might be
used to violate and trample personal liberties were brought to the attention of the judiciary and civil
society as a result of this experience.

Rape culture is embedded into the very fabric of society, as horrible as it is. This reality makes it
incredibly difficult to fully execute any legal reforms or initiatives, because the actual issue here is
the mindset that people pass down from generation to generation.To really comprehend this story,
we must go back to the differences in how a girl child is raised v. a guy child's upbringing. Women
are given kitchen sets and barbies to play with from an early age. This seemingly innocuous
behaviour can instil gender roles in the minds of children who aren't even aware of the notion. In a
child's thinking, this manifests itself in the identification of particular qualities with a gender. When
girls are given barbies to tend after and nurture, it promotes their position as a caregiver and
someone who cooks, cares for, and cleans up after others.

It begins to force individuals into societally prescribed behaviour categories. This creates a female
narrative in the brains of young boys and establishes a gender role for both men and women. When
this is combined with society's perception of males as the provider of food and the habit of society
to continuously place men on a pedestal in every sector, women are considered as the lesser gender

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because they do not do the same chores as men. This sense of superiority that encourages males to
believe they are superior to women also leads to a lack of respect for a woman's agency.

Effects of Custodial Rape:-

To narrow down the studies to the psychological effects of incarcerated rape, it's important to
remember that women are particularly prone to sexual assault or misconduct. As previously said, it
is a setting where a hierarchy is established, with police officers wielding entire power and the
person in custody being completely at their mercy. Many non-governmental organisations (NGOs)
have advocated for more awareness regarding sexual assault in prison over the years. However, the
problem is more of a grey area, and it's difficult to collect reliable figures on how many rapes occur
in custody. Because the perpetrator is a state official, there are numerous cover-ups to ensure that
this information is not released; additionally, in many cases, police officers have requested that the
victim undergo a "virginity test" to prove that the rape occurred while they were in custody, which
is a medically flawed argument to present because gynaecologists have stated that virginity is not a
medically verifiable construct.

All of these variables combine to make rapes in custody a considerably more terrible experience
since they occur in a location that is legally designed to keep the subject secure. Even when they are
let back into society, it causes them to feel uncomfortable and makes them feel like they have no
control over what happens to their bodies. They believe that their body is no longer sacred to them
since someone else has taken advantage of it in a designated safe zone. Since the exploitation
occurred because the authority had control over them, the PTSD is strong to the point where they
may always be terrified of approaching police officers or authority figures in their lives. Fear and
intimidation on the part of the authorities can intensify the situation, worsening the individual's
psychological state and causing worry. If the victim decides to report the crime despite the
harassment, they will be subjected to extremely hostile interrogation, which can exacerbate the
victim's feelings of humiliation and embarrassment.

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 LEADING CASE LAWS

1. Tukaram & Anr v. State of Maharashtra (Also known as Mathura Rape case)

Facts of the case:

Mathura was an orphan who shared a home with her brother Gama. She worked as a labourer at
Nushi's home. She had sexual encounters with Ashok, Nushi's sister's son, during the course of her
work. Following that, they decided to marry. All the interested persons, including Ashok, Nushi,
and other relatives, were summoned before the police station on the basis of a report filed by Gama
on March 26, 1972, saying that Mathura had been kidnapped.At after 10:30 p.m., everyone began
walking out after their statements were recorded. Mathura was ordered to wait inside the police
station by the first appellant, Ganpat. He took her up to the washroom after closing the doors and
turning off the lights inside and raped her despite her protests. Tukaram, the second appellant, came
over when he was finished and fondled her private parts. He attempted to rape her as well, but failed
due to his inebriation.Mathura told her family and friends about the incident after they were
reunited. When Mathura was medically evaluated, it was determined that she was between the ages
of 14 and 16, and that her hymen revealed past ruptures, but that she had no other injuries on her
body.On March 27, she was examined by Dr. Shastrakar, who advised that a FIR be filed. In 1979,
the appellants were acquitted by the Supreme Court after a long battle.

Judgment of the case:

Finally, in 1979, the Supreme Court overturned the High Court's conviction and acquitted the
defendants. This was an instance of voluntary sexual intercourse, according to the Supreme Court,
which concurred with the Sessions Judge. The Supreme Court went on to say that while "no signs of
harm" were observed on Mathura's body, she showed "no resistance" and did not "raise an alert" for
aid, she "consented to intercourse."

Aftermath of the case:

 The Criminal Law Amendment Act was passed in 1983 as a result of this. This statute
changed Section 114(A) of the Indian Evidence Act, which stated that if a victim does not
consent to sexual intercourse, the court will assume she did not consent.2

2
Section 114(A), Indian Evidence Act, 1872.

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  In addition, Section 376 of the IPC was changed to make custodial rape a crime punishable
by at least seven years in prison. Once sexual intercourse is proved, the burden of proof is
shifted from the victim to the perpetrator in this section.3
 The amendment also prohibited the disclosure of victims' identities and stated that rape trials
should be held in secret.
 Despite the fact that Parliament altered rape legislation to serve justice, judicial
interpretation of these statutes has done the exact opposite.

2. Rameeza Bee Case

Facts of the Case:

Rameeza Bee, a 26-year-old working-class woman, and her husband, Ahmed Husain, a rickshaw
puller, were arrested for loitering while going home after viewing a late-night movie show in
Hyderabad. Rameeza Bee was raped by three police officers when her husband went home to
bring money to pay their fine. When he returned, he protested his wife's assault, but was cruelly
beaten to death by the cops.Rameeza Bee made a formal complaint about the occurrence, which
sparked violent protests and riots in Hyderabad and Secunderabad, as well as other districts of
Andhra Pradesh. The episode of custodial rape had severely stained the police's image. Four
police officers were placed on administrative leave.

Further Developments in the Case:

The then-Andhra Pradesh Chief Minister was forced to establish a Commission of Inquiry – the
Justice Mukhtadar Commission – to investigate Rameeza Bee's rape and Ahmed Hussain's
death. The police justified the rape and murder by criticising Rameeza Bee's character during the
Commission's hearings. They presented evidence that Rameeza Bee had been married multiple
times, that her marriage to Ahmed Hussain was invalid and that she was immorally cohabiting
with him, and that she was a sex worker arrested for soliciting.The police officers were found
guilty of rape and murder, and the Commission recommended that they be prosecuted. The
police officers' prosecution began in the neighbouring state of Karnataka, where it was later
transferred. The officers were later cleared by the session's court, claiming that evidence
obtained through a Commission of Inquiry was inadmissible.

3
Section 376, Indian Penal Code, 1860.

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 3. Maya Tyagi Case:

Maya Tyagi is an example of a case in which legal reforms were initiated to distinguish between
custodial rape and rape. Maya Tyagi, who was six months pregnant at the time, was pulled out of
the car, beaten, and stripped naked. The cops shoved a lathi into her vagina when she did not move
despite the brutal beatings. She was raped after being shown naked to the police station. The cops
shot and killed her husband. Maya Tyagi was backed by former Prime Minister Chaudhary Charan
Singh in this movement. This case has sparked huge demonstrations around the country from
women's organisations and political parties.This occurrence was the subject of a court investigation,
as well as a parliamentary debate on the rising rates of rape and violence against women.

LEGAL REFORMS

The women's movement requested a paradigm shift in criminal law linked to rape and other types of
sexual assault committed in custody as a result of the aforementioned obstacles in prosecuting cases
of custodial rape.

1. Expansion of the term “custody”:

Although the concept of 'rape in custody' originated in the context of women being raped by police
officers within the confines of a police station, the law has given the term 'custody' a broader
connotation. In 1983, the law was revised to include the idea of custodial rape and to broaden the
definition of custody to include:

 Rape by a police officer within the confines of the police station to which he has been
assigned, in the premise of a station home, or on a woman in the care of such a police officer
or a police officer subordinate to such a police officer;
 Rape of a woman by a public officer in his or her custody, or in the custody of a public
servant subordinate to him;
 Rape by a member of the armed forces in a deployed region;
 Rape by a member of the management / staff on an inmate in a jail, remand home, women's
home, children's home, or other place of detention; and

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  Rape by a member of the management / staff of a hospital on a woman in the hospital.

2. Shifting of Burden of Proof:

Normally, the prosecution (representing the state) is responsible for proving that an accused
committed an offence, as the state has greater powers and apparatus at its disposal to prove the
accused's guilt. As a fundamental premise of human rights and criminal law, the accused is
presumed innocent unless proven guilty.In 1983, S.114A of the Indian Evidence Act created an
exemption to the concept of presumption of innocent in cases of custodial rape. According to this
rule, if the prosecution is able to prove sexual intercourse and the lady claims it was done without
her consent, the court will assume there was no consent. The accused now must prove that the
woman gave her consent to intercourse.

3. Enhancement of the Punishment:

The severity with which the law punishes a crime is often reflected in the punishment given for it.
When the law was amended in 1983 and afterwards, the sentence for custodial rape was enhanced in
comparison to rape by an ordinary person. A minimum of ten years of harsh imprisonment, with a
fine, has been imposed by law, with the possibility of life imprisonment (i.e., imprisonment for the
rest of the person's natural life).

4. Failure to perform duty as a Punishable offence:

To counter the problem of non-registration of FIR at the discretion of police officers the government
has made the failure of government personnel to aid a rape victim was recognised as a penal offence
for the first time in 2013, according to a legislation revision. The police have a responsibility to
register the FIR as soon as possible. Under S. 166A IPC, a public servant who disobeys the law
faces a penalty of 6 months to 2 years in prison.

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 REFERENCES

CASES REFERRED:

1. Sakshi v. Union of India & Ors, (2004) 5 SCC 546.

2. Tukaram & Anr v. State of Maharashtra, 1979 AIR 185.
3. Rameeza Bee Case
4. Maya Tyagi Case

5. Avatar Singh v State of Punjab

6. M/s Shriram Transport Finance Co. Ltd. v R. Khaishiullah Khan
7. State of Maharashtra v Vishwanath
8. Purshotam Jethanand v. State of Kutch
9. State of Punjab v Nihal Singh
10. Emperor v Sitabai Purshottam
11. Sekar v Arumugham
12. Pyarelal Bhargava v. State of Rajasthan

DATABASES REFERRED:

1. SSC Online
2. Manupatra
3. Hein Online

WEBSITES REFERRED:

1. http://lawtimesjournal.in/rape-and-its-punishments/ (last visited 07-05-2022, 10:45am)

2. https://feminisminindia.com/2019/04/16/custodial-rape-india/ (last visited 08-05-2022,
10:10am).
3. https://www.indiatoday.in/magazine/indiascope/story/19780831-legal-battle-awaits-to-prove-
charges-against-rameeza-bee-822980-2014-03-20. (last visited 08-05-2022, 11:00am).

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