However, the arrest failed to pacify public outrage. By Wednesday night (April 30), around 9:30 PM, a group of men gathered near the market area where the accused had an office and began targeting businesses owned by members of the Muslim community. Videos later circulated on social media showed shops being vandalised, staffers slapped, and stones hurled at a nearby mosque. Several shops and eateries were damaged, and incidents of assault were reported. Though police intervened to de-escalate the situation, their response was widely seen as inadequate.

Right-wing outrage targets Muslim businesses in retaliatory fury

Fuelled by the accusation against the elderly Muslim man, Hindu nationalist organisations swiftly mobilised, broadening their focus from the individual to the entire Muslim community in Nainital. These groups, often operating under the banner of protecting Hindu interests, engaged in a campaign of collective punishment. Their actions extended beyond mere condemnation of the alleged crime, manifesting in direct attacks on Muslim-owned businesses and the physical assault of Muslim individuals.

Despite the prompt arrest of the accused and the completion of the minor’s medical examination – steps indicating the legal process was underway – these right-wing outfits continued their aggressive actions. Their demands often included handing over the accused to their custody, bypassing the judicial system entirely, and further inflamed the communal tensions by propagating a narrative of collective guilt and demanding discriminatory actions against the Muslim population of Nainital

Public reaction escalates into mob violence

The violence on Wednesday night appeared to be part of a broader, emotionally charged backlash. Despite assurances from law enforcement that the accused had been arrested and was facing severe charges, a large crowd moved through the central town area, launching coordinated attacks. Most of the affected establishments belonged to Muslims, heightening communal tensions. Shopkeepers and local residents described the scene as chaotic, with shutters broken, staff beaten, and customers fleeing. Among the worst affected was Monish Jalal, a restaurant owner in Gadi Padaw, who condemned the assault on his livelihood, saying, “We want justice for the girl, but what connection do we have with the accused?” reported the Times of India.

Others, like Bimla Devi, a senior resident running a family tea stall since the British era, described the damage to her stall as “complete destruction.” Both expressed dismay at the lack of timely police action and called for justice — both for the victim and for innocent business owners caught in the crossfire, as reported

Against the tide: Hindu woman stands up for Muslim community

In a striking display of moral courage amidst the rising communal frenzy, a Hindu woman emerged as an unexpected beacon of reason. As a rally of Hindu nationalist supporters marched through Nainital, their chants laced with anti-Muslim slogans in response to the alleged sexual assault, she bravely stepped forward to confront them. Her act was a powerful testament to shared humanity, as she challenged the very premise of their collective blame and the injustice of targeting the entire Muslim community for the alleged actions of one individual. Undeterred by the charged atmosphere and the potential for backlash, she directly rebuked the mob for their indiscriminate attacks on innocent Muslim shopkeepers, emphasising their lack of connection to the alleged crime.

Furthermore, she vocally condemned the abusive and derogatory language employed during the rally.

BJP leader threatened Muslim food vendors

In a video that quickly circulated on social media, BJP leader Vipin Pandey openly threatened to Muslim food vendors, insisting that their shop names must explicitly reflect their Muslim identity. Pandey warned that if the vendors failed to comply within a day, they would face physical assault. The remarks have drawn sharp criticism from various quarters, with many calling them inflammatory and divisive.

Civil society groups and political opponents have condemned the threat as a blatant attempt to stoke communal tensions and marginalise minority communities.

Meanwhile, local authorities have yet to take official action, prompting concerns over law enforcement’s response to hate speech and intimidation.

Political and community demands mount

The unrest prompted swift political and administrative responses. A group of residents submitted a memorandum to Kumaon Commissioner Deepak Rawat, making wide-ranging demands. These included a comprehensive verification of all “outsiders,” especially those belonging to the minority community working as tenants, daily wage earners, or small business owners. They also demanded the seizure of the accused’s property as a deterrent, an inquiry into property acquisitions by individuals from the minority community in commercial areas, and the establishment of a monitoring committee to oversee regional activity.

The memorandum also called for prioritising employment opportunities for local youth, and for Nainital to be declared a “sensitive cultural zone,” complete with special policy safeguards to preserve the town’s heritage and demography.

Administrative response: crackdown on encroachments and security measures

District Magistrate Vandana took immediate administrative action by appointing magistrates to sensitive locations, including the market and mosque premises. She instructed the Nainital District Development Authority to resume its anti-encroachment drive and ordered the completion of pending hearings on illegal constructions within 15 days. On Thursday, authorities carried out marking operations at multiple locations in the city, issuing 150 challans — 100 by the Municipal Council and 50 by the Development Authority — for unauthorised structures, encroachments on public infrastructure, and unapproved construction, according to the Indian Express.

Additionally, a notice was served to the accused, stating that his property was illegal and granting him three days to present his case before further legal action. Police presence was bolstered in sensitive zones, especially around religious sites, ahead of Friday prayers. The district also increased surveillance and verification of taxis, rental services, and roadside vendors to ensure tourist safety amid the turmoil.

Strikes, closures, and tourist disruption

According to reports, the violence and growing unrest had immediate consequences for daily life in Nainital. Schools remained shut on Thursday, and traders in the town centre observed a strike, partly enforced by local right-wing organisations. Amandeep Singh, general secretary of the Nainital Vyapar Mandal, said the strike symbolised collective anger at the crime, while also noting that food arrangements were made for stranded tourists. Police checkpoints were established along major roads, and tourists reported a curfew-like atmosphere, with most shops and restaurants closed.

“The tourism business has been severely affected,” said Nainital Hotel Association President Digvijay Singh Bisht, as Indian Express reported.

Local lawyers boycott case, demand inquiry into Nainital’s changing demographics

The case also resonated within the legal community. In a strong display of protest, district court lawyers unanimously decided to withdraw legal representation from the accused. Advocate Daya Joshi stated that the local bar had also requested an investigation into the recent influx of residents in Nainital. “No lawyer from our bar council will represent this man.”

Similarly, as the Indian Express reported that Protesters have demanded strict punishment for the accused, including the confiscation of their property. They also called for thorough verification drives targeting outsiders—particularly tenants and temporary workers from a specific community—and the identification and deportation of any foreign nationals residing illegally.

Muslim organisations submitted a memorandum to DGP

Simultaneously, Muslim organisations reacted strongly to the targeted violence. In a memorandum to DGP Deepam Seth in Dehradun, they condemned both the heinous crime against the minor and the subsequent attacks on innocent community members. “We too want justice for the girl,” said Naeem Qureshi, president of the Muslim Seva Sangathan. “But the collective punishment of unrelated individuals through violence and arson is unacceptable” as reported in the Times of India.

Uttarakhand High Court takes suo moto action

Taking cognizance of the volatile situation, the Uttarakhand High Court initiated suo moto proceedings. During the hearing, government counsel J.S. Virk informed the bench that heightened security measures were in place, including vehicle checks at key entry points into Nainital — Haldwani, Bhavali, and Kaladhungi. The court, comprising Justices Manoj Kumar Tiwari and Vivek Bharti Sharma, directed authorities to maintain strict law and order, prohibit large gatherings, and monitor social media to prevent misinformation and incitement.

As reported, the bench emphasised the importance of sustained patrolling to ensure that similar unrest does not spread or recur in other sensitive regions like Haldwani. It also called on citizens to cooperate with the administration to restore peace and communal harmony.

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The post Nainital on communal edge after 75-year-old Muslim man booked for alleged rape of minor girl appeared first on SabrangIndia.

Thirty-six-year-old Dnyaneshwari Anjan, a practising advocate at the Ambajogai Sessions Court, had reportedly approached the police with a complaint about loudspeakers blaring from a nearby temple, as well as the constant disturbance from three flour mills installed near her home. Villagers, including the sarpanch (village head) however claim that she was a persistent (and often exaggerated complaint), sometimes even filing false complaints! Her claim that the persistent noise triggered migraines and caused her physical distress brought her violent retribution. Instead of any attempts at dialogue with her, detractors resorted to what, increasingly is seen, vigilante violence.

On the morning of April 19, 2025, Anjan was attacked by her village sarpanch and at least nine of his supporters. According to her account, they dragged her to a farm and formed a circle around her, beating her with wooden sticks and plastic pipes—including on her head—until she nearly lost consciousness. The photos of her severely bruised and battered back, which she later shared publicly, went viral on social media, igniting an outcry among civil society, and opposition leaders.

An attack orchestrated by power and patriarchy

This was not a spontaneous act of rage—it was a deliberate, orchestrated punishment for speaking up. Anjan revealed that prior to the attack, the sarpanch had visited her house and told her parents to “reprimand” her, as though her assertion of rights was a form of insubordination. An FIR was registered a full day after the assault, under the Bharatiya Nyaya Sanhita (BNS), including sections for rioting (Section 191(2)), assault to outrage modesty (Section 74), unlawful assembly (Section 189), criminal intimidation (Section 351(2)), and voluntarily causing grievous hurt by dangerous means (Section 118(2)). And yet, as of the last update, none of the accused had been arrested. The police at Yusuf Wadgaon station claimed that search teams had been formed, but the perpetrators remain at large—shielded, perhaps, by political proximity or the comfort of knowing that consequences are rarely swift for those who harm women.

Political firestorm, but no real action

Opposition leaders were quick to condemn the incident. Maharashtra Congress chief Harshvardhan Sapkal declared it a “proof” of the BJP-led government’s failure to ensure women’s safety, stating, “If a woman lawyer is not safe, what about ordinary citizens?” He added that the lawyer was taken to a farm and mercilessly beaten till she fell unconscious, demanding the arrest of the accused and accountability from Devendra Fadnavis, who also holds the home portfolio.

Amol Kolhe, NCP (Sharad Pawar faction) MP, called the incident a “blot on a progressive state like Maharashtra”, invoking the legacy of icons like Jijabai, Ahilyabai Holkar, and Savitribai Phule, and pointing to the collapsed law and order under the BJP-Shiv Sena-NCP alliance. As per Hindustan Times, he added, “Instead of working for the people, alliance leaders are busy fighting among themselves for power.”

Even as the outrage spread online, with photos of Anjan’s injuries making the rounds, the BJP led Maharashtra state government’s silence has been deafening. As public confidence in the state’s protection mechanisms erodes, what is left is the image of a woman lawyer—bruised, nearly broken—punished for doing what the law allows: filing a complaint.

A female advocate was brutally beaten by Sarpanch and his accomplice at Beed District of Maharashtra. Beed again news for wrong reasons#Beed #beednews #Maharashtra pic.twitter.com/QftUfGeCbR

— Tikam Shekhawat (@TikamShekhawat) April 18, 2025

From Beed to Delhi: A wider crisis of safety for women in law

What makes the Beed incident even more disturbing is that it is not isolated. Just days earlier, in Delhi, a woman Judicial Magistrate was subjected to a shocking episode of intimidation and abuse—this time within the confines of her own courtroom.

After convicting an accused in a cheque bounce case under Section 138 of the Negotiable Instruments Act, Judicial Magistrate Shivangi Mangla recorded in her official court order that the accused and his lawyer hurled abuses, made death threats, and attempted to hurl an object at her. The convict told her, in open court, “Tu hai kya cheez… tu bahar mil, dekhte hain kaise zinda ghar jaati hai”—a direct threat to her life.

The lawyer, Atul Kumar, joined his client in pressuring the magistrate to resign and reverse her judgment. Judge Mangla noted that the harassment continued beyond the courtroom, including psychological pressure to quit her post. In her courageous response, she announced her intent to approach the National Commission for Women, and also issued a show cause notice to the lawyer, asking why criminal contempt proceedings should not be initiated against him.

Here was a woman judge, upholding the law of the land, being told she might not “make it home alive” for doing her job.

A systemic pattern of violence and intimidation

What connects Dnyaneshwari Anjan in Beed and Shivangi Mangla in Delhi is not just their profession—it’s the price they paid for exercising their legal rights and authority. In one case, a complaint. In another, a conviction. In both cases, the state’s promise of safety and institutional protection crumbled in the face of patriarchal rage and unchecked power.

It is not enough to call these “rare” or “shocking.” They are part of a wider pattern of systemic violence against women—especially those who step outside domestic spaces and challenge the authority of men in politics, religion, and even the courtroom.

What is at stake is the integrity of the legal system itself, the right to justice, and the belief that the rule of law can protect us.

Conclusion: When the protectors are left unprotected

The brutal assault on Dnyaneshwari Anjan and the threats against Judge Shivangi Mangla should not be seen as two separate news items—they are symptoms of the same disease. A society where women in legal professions are met with violence, abuse, and threats, simply for doing what the law entitles them to do, is a society teetering on the edge of lawlessness.

Where is the urgency in the state’s response? Where is the accountability from those in power? Notably, both the states where these incidents took place are being governed by the Bharatiya Janata Party (BJP) government. When perpetrators feel empowered enough to attack lawyers and threaten magistrates, they are signalling something far more dangerous—that they believe the law is on their side, or at least will look the other way.

Related:

When Courts Fail Survivors: How patriarchy shapes justice in sexual offence against women cases

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The post Beed to Delhi: Lawyer beaten in Maharashtra, judge threatened in Delhi—what the path for justice means for women practioners in today’s India appeared first on SabrangIndia.

In the video, a man is seen forcibly pulling off the woman’s hijab as others shout abuses, harass, and physically attack both her and the man she was with. The incident occurred in the Khalapar area while the duo—riding a bike—were returning from Sujroo village after collecting a loan EMI on behalf of Utkarsh Small Finance Bank. The woman, according to her police complaint, stated she had been accompanying one of her mother’s colleagues on official duty when they were suddenly stopped and assaulted.

 

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“A group of 8-10 men started verbally abusing me and also physically assaulted me and the man who was accompanying me. The accused also pulled my burqa and clothes as I struggled to save myself. They also recorded a video of the attack and threatened to make the incident viral,” she told the Times of India.

Muzaffarnagar City DSP Raju Kumar confirmed the sequence of events. He stated that “the incident occurred between approximately 4 and 4:30 pm. A Hindu man from Bhavan area and a Muslim woman from Khalapar, both associated with Utkarsh Small Finance Bank, were returning from Sujroo after collecting a loan installment. They were stopped and assaulted by some locals in Darzi Wali Gali. Six accused have been arrested so far. We have also taken cognizance of the video. Further arrests will be made as more people are identified from the video. Strict legal action will follow” reported the Times of India.

The police identified the accused as Sartaj, Shadab, Mohammad Umar, Arsh, Shoaib and Shami, all residents of Muzzaffarnagar, as per a report in the Indian Express.

An FIR was registered on April 12, under Sections 115(2) (voluntarily causing hurt), 352 (intentional insult with intent to provoke a breach of public peace), 191(2) (rioting), and 74 (assault with intent to outrage the modesty of a woman) of the Bharatiya Nyaya Sanhita (BNS) against unidentified men (later identified by the police).

Following the arrests, visuals emerged from the police station showing the accused men limping as they were escorted by officers. Several users on social media, however, alleged the limping appeared “staged,” raising further questions about the handling of the case.

Bengaluru Park harassment: ‘Remove Your Burqa,’ Man yells at Muslim girl with Hindu boy

In another deeply troubling incident—this time in Bengaluru—a Muslim girl and a Hindu boy were harassed in a public park by a man outraged by their interfaith relationship. The man demanded the girl remove her hijab and filmed the couple, subjecting them to public humiliation. The video, once circulated online, triggered public alarm and prompted the police to intervene.

The footage, now widely shared, shows the couple being confronted by the man, who points out their religious identities and insists the girl take off her hijab. As the girl and boy repeatedly plead with him to let them go, he continues his tirade, ignoring their distress.

“Remove your burqa,” the man is heard shouting. He harasses the couple persistently, referring to the hijab as “Muslim attire” and demanding the girl reveal her name. He also confronts the boy, questioning how he could date a Muslim girl.

In the video—believed to be the second such moral policing case in the city in a week—the man continues to record them and threatens further confrontation.

“Community members are coming, stay here,” he tells the girl, implying the imminent arrival of others to escalate the situation. Despite her repeated pleas for him to stop, the harassment continues. The exact time and location of the incident remain unverified. The video was posted on platform X and tagged to the Bengaluru Police Commissioner. Authorities say they are investigating and have requested the individual who uploaded the video to provide more details to aid legal action.

Another Moral policing in Bengaluru

Radical Islamist goon abused muslim Women and showed that Dravidian guy his rightful place

No matter whether you are Dravidian, Aryan, Northie, Southie, secular or whatever, still you are a Kafir and will be treated accordingly pic.twitter.com/hVld1U3Y4A

— DSH MAX (@team_dsh_1) April 14, 2025

In another portion of the video, the man berates the girl using religious arguments, questioning her behaviour and demanding she stop wearing her burqa in public when meeting someone from another faith.

The unidentified Men asks, repeatedly pressuring her to remove her hijab while saying that hijab belongs to our community and scolding her for going on dates in “Muslim attire.” As the boy attempts to make a phone call, the man warns him that his associates are on their way to “teach them a lesson.” When the couple tries to walk away, he blocks their path again, reiterating that others will soon arrive.

In response to the viral clip, the police have officially acknowledged the incident and are working to gather more information to ensure legal proceedings against the perpetrator.

Hii this is police sub inspector from kothanuru police station…
Plz provide your contact number or DM for my num 9986535381,
It will help us resolve things please

— KOTHANURU BCP ಕೊತ್ತನೂರು ಪೊಲೀಸ್ ಠಾಣೆ (@kothanurups) April 15, 2025

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The post Extremists assaulted Muslim woman; hijab stripped of in broad daylight in Bengaluru and Muzaffarnagar appeared first on SabrangIndia.

Across these three cases—ranging from the grant of bail in a rape case involving an intoxicated college student, to the dilution of charges in a case of sexual assault against a minor, to the careless granting of bail in a child trafficking racket—the High Court’s orders have come under sharp scrutiny. The apex court has not merely disagreed with the legal reasoning offered, but has gone a step further to publicly chastise the judges involved for passing orders that reflect a “lack of sensitivity,” “misapplication of law,” and “casualness in handling crimes against the most vulnerable.”

At the heart of this moment lies a much-needed reckoning with the gendered biases and prejudices that continue to shape how courts interpret the law. These cases have also reignited the debate on judicial accountability, particularly around how courts often reproduce social hierarchies and fail to protect those most in need of their constitutional mandate. The Supreme Court’s recent responses mark a significant intervention, one that reasserts the need for justice systems to be empathetic, victim-centric, and alive to the unequal social realities within which violence and exploitation occur.

• Victim-blaming in a rape case involving an intoxicated college student

In one instance, the Supreme Court criticised Justice Sanjay Kumar Singh of the Allahabad High Court for observations made while granting bail to a man accused of raping a college student. The High Court, in a shockingly regressive comment, held that the woman “invited trouble” and was herself “responsible” for the alleged sexual assault. The victim, who had met the accused at a bar in Delhi, claimed she was intoxicated and had accompanied the man to rest at his house but was instead taken to a relative’s flat and raped.

Justice Singh dismissed her allegations by pointing to her torn hymen—while also noting the medical report didn’t explicitly state sexual assault—and further added that as an MA student, the woman should have understood the “morality and significance of her act.” These remarks sparked immediate outrage for their blatant victim-blaming and for perpetuating rape myths that have no place in judicial reasoning. The Supreme Court firmly stated that while the granting of bail lies within judicial discretion, such gratuitous and damaging observations against the complainant are wholly unwarranted and erode public trust in the justice system. As per LiveLaw, Justice BR Gavai expressed his displeasure at such comments being made, and remarked, “What is this discussion that ‘she invited trouble’? Judges must be more careful, especially when it comes to such cases.”

• Diluting sexual offences against a minor

In a second and even more alarming case, the Supreme Court took suo-motu cognisance of another order by the Allahabad High Court where it diluted the charges in a case involving the sexual assault of a child. The High Court had originally altered a lower court’s summoning order, replacing charges under Section 376 IPC (rape) and Section 18 of the POCSO Act (attempt to commit an offence) with lesser charges under Section 354-B IPC (assault with intent to disrobe) and Sections 9/10 of the POCSO Act (aggravated sexual assault).

Justice Ram Manohar Narayan Mishra reasoned that although the accused had grabbed the child’s breasts and attempted to pull down her pyjamas before being stopped, such conduct did not indicate a “determination” to commit rape. This interpretation drew strong disapproval from the Supreme Court, which found the High Court’s minimisation of the assault deeply problematic. The apex court had earlier stayed this order, highlighted the disturbing lack of judicial sensitivity and asserted that the judgment did not appear to be a “spur of the moment” lapse but a serious judicial misstep. The matter was taken up after the women’s rights group We the Women of India flagged the order, prompting the Supreme Court to seek responses from the Union and the Uttar Pradesh governments.

• Bail granted in child trafficking case without due diligence

In a separate matter involving child trafficking, the Supreme Court came down heavily on the Allahabad High Court once again, this time for granting bail in a child trafficking case in a casual and negligent manner. The apex court found that the High Court failed to impose even basic conditions on the accused, such as requiring them to mark their presence at police stations. As a result, many of the accused absconded, severely compromising the investigation and posing a grave risk to society.

The case involved the trafficking of a new-born, who was sold for ₹4 lakh to a couple desperate for a male child. The Supreme Court ordered the immediate surrender of all accused and cancellation of bail, directed the appointment of special public prosecutors, and mandated the trial to proceed on a day-to-day basis, with a timeline of six months for conclusion. The Bench, comprising Justices JB Pardiwala and R Mahadevan, also issued far-reaching directives to all States and High Courts to expedite child trafficking trials and take punitive action against hospitals involved in such crimes.

The Court’s disappointment was palpable: “We are thoroughly disappointed with how the State of UP handled this. There was no seriousness worth the name,” it observed, as per BarandBench. Taking cognisance of a Times of India report, the Court also directed the police to report on steps taken to dismantle trafficking gangs.

A Larger Pattern: Biases in the judiciary

These three cases are not isolated judicial lapses. They reflect a larger, structural pattern of gender bias, moralism, and caste–class insensitivity within sections of the judiciary. Whether it is disbelieving women who speak up about sexual violence, minimising the trauma of minors, or failing to acknowledge the societal menace of child trafficking, the judiciary has often been found wanting.

When High Court judges pass orders that reinforce patriarchal tropes—by blaming victims for their clothing, choices, or social behaviour—they not only fail in their legal duty, they do serious harm to the broader struggle for gender justice and equality. Judicial commentary, especially in bail orders, has a real and chilling effect: it silences survivors, deters reporting, and normalises impunity for perpetrators.

The Supreme Court’s recent interventions are therefore significant not only because they correct individual injustices but because they send a strong message to the judiciary. They reaffirm that judicial reasoning must be guided by constitutional morality, not personal prejudices; that courts must be spaces of redress and empathy, not shame and suspicion.

A call for structural reform and judicial sensitisation

These cases point to an urgent need for systemic reform within the judiciary. Mandatory gender sensitisation training for judges, stricter accountability for prejudicial orders, and mechanisms for survivor feedback must form part of the legal reform agenda. Additionally, there must be structural checks on moralistic and casteist reasoning that creeps into court judgments.

The Supreme Court, by publicly pulling up the Allahabad High Court, has sent a rare but powerful message—that justice must not only be done but must be done with sensitivity, dignity, and constitutional fidelity. 

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The post When Courts Fail Survivors: How patriarchy shapes justice in sexual offence against women cases appeared first on SabrangIndia.

This was the situation in several villages of Bali block in Pali district of Rajasthan inhabited by the Garasia tribal community about a decade back. Women were deeply troubled by the increasing drift towards alcoholism which was partly triggered by the proliferation of illegal selling joints in remote villages in addition to the extension of legally sanctioned liquor selling shops or thekas.

In contrast, however, one positive development had also emerged. In recent times an increasing number of self-help groups had been organized in many of these villages, particularly involving women of the Garasia tribal community. While the more obvious aim was to promote savings and economic security, at the meetings of these groups the women also discussed their other serious problems and concerns and whenever they discussed serious problems including violence against women and economic crisis situations, the growing alcoholism emerged as an important cause of these problems in these discussions.

Can we do something to check this ever-increasing problem, these women asked each other in their group discussions, and in the course of these deliberations, some kind of a plan began to emerge.

The women increasingly felt that only small village-level efforts will not be adequate, a bigger impact must be created by planning something that will reveal the depth of their feelings regarding the increasing menace.

After considering many suggestions the women decided that they will get together to organize a very long march covering most of the area over which their villages are located.

To symbolize their unity and their determination for a joint effort, they decided to prepare a pink dress that they would all be wearing in the course of this march. It was also decided that other social reform issues such as reducing child marriages and preventing domestic violence will also be raised during the march to impart a wider social reform dimension to this march, although the core issue will remain that of checking the increasing alcoholism.

This decision of women from weaker section households was very courageous as the legal and illegal sellers of liquor were known to be among the most powerful and violent persons of this region.

Starting early in morning this march of women covered a distance of nearly 25 km and ended at night. As many as about 2000 women participated in this long march.

On the way they smashed up several illegal liquor making bhattis (joints) and illegal selling units. They stopped in front of legal liquor vends and shouted slogans against opening liquor shops even in remote villages.

This march made a big impact on people. The courage of the women in confronting the powerful liquor lobby and mafia was widely appreciated. The increasing drift towards alcoholism could be checked. In addition, there was a reduction in domestic violence.

There was also a lot of follow-up- action in the form of sending representations to the authorities for shutting down illegal liquor selling joints and also making community level efforts for this. There was a continuing dialogue on the highly adverse impacts of increasing alcoholism on the community. All this helped to check the increasing spread of alcoholism.

After the peak of this activity had passed, these women and their groups continued their efforts to check the spread of alcoholism at a smaller level in later years. The result has been that the earlier trend of fast drift towards alcoholism could be checked on a more stable and permanent basis. A recent visit to these villages and conversations with women here revealed that the problem has reduced compared to the worst period seen before the women’s anti-liquor march was undertaken.

Meanwhile these women and their groups have also continued to be active in taking up a range of other important social issues. They continue to remember the march as a very inspirational part of their efforts, one indication of which is that group members have permanently adopted the pink colour dress prepared at the time of the march as their regular dress by which the group members are recognized even now.

The writer is Honorary Convener, Campaign to Save Earth Now. His recent books include Protecting Earth for Children, A Day in 2071 and Man over Machine.   

The post Women in remote villages mobilise to check fast spread of alcoholism appeared first on SabrangIndia.

Their testimonies have been crucial in exposing state complicity, resisting the erasure of history, and demanding accountability. Yet, their pursuit of justice has been met with intimidation, legal obstruction, and, in some cases, criminalisation. Across these three instances, a grim pattern emerges: the deliberate targeting of women, the systemic failure of institutions meant to protect them, and the extraordinary resilience with which they have fought back.

1984 anti-Sikh pogrom: Survivors bore became the voice of the battle for justice

The anti-Sikh riots of 1984 resulted in the targeted killings of close to 3,000 Sikh men in Delhi alone though the all-India figures are higher. The targeted violence left behind a generation of widows who not only survived brutal gendered violence at the time, but also bore the burden of documenting the atrocities and seeking justice for over three decades. These women, who were often left to fend for themselves by a cruel state apparatus, after witnessing the murders of their male relatives, rose out of the tragedy to become among the strongest voices to reclaim memory and assert the cries for justice. It was their collective voice that ensured that the history of the massacres was not erased. Their testimonies and persistent legal battles formed the backbone of efforts to hold the perpetrators accountable.

The Sikh women who survived the 1984 riots had to overcome the dual trauma of sexual violence and the loss of their families. Many were raped in front of their own children, while others were kidnapped and tortured for days. Their homes were looted and burned, leaving them homeless and destitute. The legal system and government, rather than offering justice, attempted to silence them through intimidation and bureaucratic neglect. Yet, these women refused to let the world forget what had happened.

Women like Nirpreet Kaur, who was 16 when she witnessed her father being burned alive, dedicated their lives to collecting evidence, documenting survivor testimonies, and ensuring that cases against the perpetrators remained alive. Kaur, despite facing police torture, years of imprisonment under false charges, and the loss of two husbands, continued to fight for justice. She meticulously gathered witness statements, encouraged other widows to testify, and resisted repeated offers of bribes and compensation meant to buy her silence.

Similarly, many widows who had lost their husbands and sons stood as the primary eyewitnesses in court. Their testimonies were critical in exposing the involvement of political leaders who had orchestrated the violence. Women who had lost everything, such as Pappi Kaur, who saw 11 of her male relatives burned alive, and Bhaagi Kaur, who was left to raise her children in abject poverty, took the stand despite threats and intimidation. Their courage ensured that the narratives of rape, murder, and destruction remained central to the legal battle.

The state machinery worked relentlessly to suppress the voices of Sikh women. Many were offered financial compensation to withdraw their cases, while others faced direct threats to their lives and families. Witness protection was virtually non-existent, with police officers themselves leaking information to the accused. In one instance, police allegedly warned a witness that her children would be killed if she continued to testify.

Despite these threats, Sikh women continued to push for legal accountability. They filed affidavits, attended court hearings, and worked with human rights lawyers to challenge the impunity granted to perpetrators. Their efforts led to the reopening of cases, the formation of commissions, and, after decades of struggle, the eventual conviction of senior politicians such as Sajjan Kumar in 2018.

The importance of women’s testimonies in the Sikh pogrom

The testimonies of Sikh women were instrumental in revealing the premeditated nature of the violence. Unlike the state’s claim that the riots were spontaneous, these women detailed how mobs were armed with chemicals, iron rods, and torches; how police officers either stood by or actively participated; and how political leaders directed the killings. Their statements also underscored the targeted sexual violence inflicted on Sikh women as a means of communal humiliation.

At the time, after the mob set Darshan Kaur’s husband ablaze, she gathered her three children, the youngest just 15 days old, and ran. In the frenzy, the baby slipped from 19-year-old Darshan’s hands. But there was no time to stop. For the next three days, she and the remaining two children ran from the police station to gurudwara searching for a safe place. Yet she has not given up and remains the haunting yet strong figure for justice for the survivors of 1984.

The fight for justice was long and arduous. It took 26 years for the trial of Sajjan Kumar to even begin, and even then, convictions came only after relentless pressure from survivors like Nirpreet Kaur. Many Sikh widows, facing extreme poverty, had to make painful choices—some accepted financial compensation in lieu of pursuing legal battles, while others withdrew their cases due to fear. Yet, those who persisted forced the legal system to reckon with the atrocities committed in 1984.

Some women were denied even dignified rehabilitation. There is Satpal Kaur, 13 years old and the eldest of four girl survivors at the time. Suddenly from living a normal middle-class life, on November 1, 1984 everything changed. Four members of their family, their father, mother, brother and uncle, were killed and only the four sisters were left alive. As the eldest, Satpal Kaur, was 13 and the youngest girl only four years old at the time, and finally it was Advocate HS Phoolka who helped the legal battle for custody of the girls that was given to the grandfather. Another story about 21 widows, all from one family, who lived in the Sagarpur area of West Delhi near the Delhi Cantonment. On November 1, 1984 a resident of the area suggested that the male members of the family should all take shelter in a tube well room located near their house. The men were locked up in the room ostensibly to save their lives but later the mob was informed of their whereabouts. They came and set fire to the room, roasting the men alive. The youngest of these 21 widows, Manjit Kaur, was just 20 years old and had only been married for two years when tragedy struck. She had no children and after this traumatic incident, did not marry again. For the two and a half decades thereafter, she tried to get a government job to no avail.

The Sikh women who survived the 1984 riots not only bore the weight of personal tragedy but also became the torchbearers of justice. Their documentation of crimes, unwavering testimonies, and refusal to be silenced ensured that the massacre was not forgotten. Though justice came late and in fragments, their fight set a precedent for future struggles against state-sponsored violence. Their resilience remains a powerful testament to the strength of survivors who refuse to let history be rewritten by those in power.

Gujarat 2002: Testifying against unimaginable horror

The Gujarat riots of 2002 marked one of the darkest chapters of communal violence in India. Amidst the widespread bloodshed, women not only bore the brunt of gendered violence but also led the struggle for accountability, documenting atrocities and seeking justice. These women, many of them victims themselves, stood against systemic apathy and intimidation to ensure that the truth was recorded and the perpetrators were held accountable. Their determination played a crucial role in exposing the extent of sexual violence during the riots, despite efforts to erase or suppress these accounts from official records. In one of its shining moments the National Human Rights Commission (NHRC) took suo moto action in Gujarat 2002. The seminal report followed by path-breaking interventions in the Supreme Court of India ensured, in some measure, that other institutions responded with some seriousness.

The gendered violence during the Gujarat riots was unparalleled in its brutality. Women were raped, mutilated, and killed, often in broad daylight; their bodies used as battlegrounds for communal hatred. The systemic nature of these crimes was evident in the way women were specifically targeted, often in public settings, as a means of humiliating the entire community. Survivors, however, refused to let these crimes be erased from history. According to officially admitted records, documented by Citizens for Justice and Peace, 97 women eye-witnesses played a critical role in criminal trials related to the massacres. Despite immense pressure, intimidation, and threats, they deposed before courts, describing the horrifying acts of sexual violence and targeted attacks in explicit detail. State Intelligence Bureau figures admitted to 99 cases of gendered violence though citizen’s efforts put the figure at twice the number.

In cases such as the Naroda Patiya massacre, where over 110 people were killed, and the Gulberg Society massacre, where at least 69 lives were lost, women testified about the gruesome acts of violence they witnessed or endured. These testimonies included accounts of gang rape, public stripping, and the killing of pregnant women and infants. Women described how mobs used iron rods, swords, and petrol bombs to attack them, often displaying a sadistic violent brutality in each of the attacks. The testimonies highlighted the premeditated nature of the mob violence as also the utter complicity of the state, from local police to other authorities.

The struggle to document sexual violence was particularly difficult, as official records often downplayed or omitted these accounts. Women survivors and activists persisted, ensuring that evidence of rape and brutalisation was included in legal proceedings and public records. Forensic reports were often manipulated or withheld, and in many cases, there was an absence of medical documentation due to the fear instilled in victims and their families. Despite these hurdles, women continued to speak out, determined to create a historical record that could not be erased.

Women who stepped forward to testify faced relentless harassment. Many were forced to relocate multiple times due to threats from the accused and their supporters. In some cases, male relatives were pressured to withdraw cases or dissuade women from testifying. Police officers and local authorities often refused to file FIRs or conducted deliberately flawed investigations, further victimising survivors. Women were denied legal representation, forced to relive their trauma in hostile courtrooms, and subjected to humiliating questioning by defence lawyers who sought to discredit their accounts.

Among those who played a pivotal role in this documentation were women like Bilkis Bano and Zakia Jafri, who recently passed away. As survivors, they turned their personal tragedies into a relentless pursuit of justice, ensuring that accounts of gendered violence were not buried under political pressure. Bilkis Bano’s testimony became instrumental in exposing the extent of sexual violence during the riots, as she recounted how she was gang-raped while her family members, including her infant daughter, were murdered. Zakia Jafri, despite losing her husband, former Congress MP Ehsan Jafri, in the Gulberg Society massacre, fought for years to hold state officials accountable for their complicity in the violence. Their struggles, alongside those of many other unnamed women, challenged state complicity and legal apathy, fighting in courts for years to establish the truth. CJP was among the leading groups that persisted over two decades with legal aid for survivors like Zakia Jafri, Rupa Mody, Saira Sandhi (Gulberg case), Bashirabi and others (Sardarpura case) and Farida bano, Shakila Bano and others in the Naroda Patiya case.

Despite multiple attempts to derail these cases, the persistence of women survivors led to rare convictions in some instances. The Supreme Court eventually intervened to move key cases, including the Best Bakery case, outside Gujarat due to concerns over bias and threats to witnesses. This was a direct result of the relentless efforts of women who refused to back down despite knowing the risks involved.

The importance of women’s testimonies in the Gujarat riots

The documentation of violence by women played a crucial role in countering the official narrative that sought to dismiss or minimise the scale of gendered atrocities. In many cases, the state machinery attempted to frame the violence as spontaneous riots rather than a coordinated attack. Women’s testimonies dismantled this argument by providing detailed accounts of how mobs were armed, how attacks were systematically carried out, and how law enforcement agencies either stood by or actively participated in the violence.

The legal battle that followed the riots was long and fraught with challenges. The initial investigations were deliberately botched, with crucial evidence being destroyed or tampered with. Public prosecutors appointed by the state were often affiliated with the ruling party and acted in ways that favoured the accused. Women survivors, however, continued to file petitions, demand re-investigations, and push for special hearings. Their relentless legal advocacy forced the courts to acknowledge the specific targeting of women during the riots and set legal precedents for future cases of communal violence.

One of the most significant impacts of women’s documentation efforts was the recognition of sexual violence as a weapon of communal conflict. Their testimonies became part of a larger movement that called for reforms in how gender-based violence was prosecuted in mass crimes. Women’s organisations, both within and outside Gujarat, used these testimonies to demand accountability at national and international levels, submitting reports to bodies such as the United Nations and the Supreme Court.

The Gujarat riots of 2002 showcased the brutalisation of women, but they also highlighted their resilience. In the face of unspeakable horrors, women survivors fought relentlessly, not just for their own justice but for a historical record that would not allow their suffering to be forgotten. Their testimonies and legal battles remain a testament to the power of resistance, ensuring that gendered violence in communal conflicts does not fade into obscurity. The documentation of these crimes by women survivors forced India’s legal system to confront the role of sexual violence in communal conflicts and laid the groundwork for future legal battles. Their fight continues to inspire generations to confront hate with courage and demand accountability, even against the most formidable adversaries.

Delhi 2020: The weaponisation of the state against women

The communal violence that unfolded in northeast Delhi between February 23 and 26, 2020, was not a spontaneous riot but an orchestrated attack. The violence, which resulted in the deaths of 53 people—40 of them Muslim—was a brutal response to the anti-CAA protests that had mobilised thousands across the country, led significantly by Muslim women. While the state and the media sought to rewrite the narrative, blaming protestors for the violence, women who had witnessed and experienced the attacks fought to document the truth and seek justice. Unlike past instances of communal violence, where survivors slowly found avenues for legal battles, the women of the Delhi riots faced an unprecedented challenge: criminalisation, incarceration, and continued suppression by the state.

The anti-CAA protests, particularly the Shaheen Bagh movement, symbolised peaceful resistance led by Muslim women. However, these women soon became targets. In Jaffrabad, one of the protest sites, women were on the frontlines, protesting discriminatory citizenship laws when mobs, emboldened by political leaders’ inflammatory speeches, launched targeted attacks. Homes and shops were torched, mosques vandalised, and people lynched. Women who led protests, like Ishrat Jahan, Devangana Kalita, Natasha Narwal, Safoora Zargar, and Gulfisha Fatima were arrested under draconian laws, accused of conspiring to incite the violence they had, in reality, been victims of.

Unlike previous instances of communal violence, where women fought prolonged legal battles for justice, in Delhi, they were pre-emptively branded as conspirators and jailed. Gulfisha Fatima, an MBA graduate and grassroots activist, was arrested under FIR 48, initially granted bail, only to be re-arrested under the Unlawful Activities Prevention Act (UAPA), ensuring her prolonged incarceration. To date, she remains in jail, a stark reminder of how the state weaponised the legal system against Muslim women who dared to resist. Gulfisha remains under arrest as an undertrial, without bail to date, five years later.

Similarly, Safoora Zargar, arrested while pregnant, was accused of being a key conspirator despite a lack of evidence. Ishrat Jahan, a former municipal councillor, was denied bail for years, and when granted, it was seen as an exception rather than a norm. Devangana Kalita and Natasha Narwal, founding members of Pinjra Tod, were arrested and re-arrested on multiple charges, illustrating the state’s relentless pursuit of women activists.

Even those who weren’t arrested faced systemic suppression. Police dismissed the testimonies of women who had lost family members and refused to investigate cases that implicated Hindutva extremists. In courts, victims found their cases delayed indefinitely, while those accused of instigating the riots walked free. The judiciary, instead of upholding justice, repeatedly sided with the state’s narrative, making it nearly impossible for Muslim women to seek legal redress.

The importance of women’s testimonies in countering false narratives

The role of women in documenting the 2020 Delhi riots goes beyond legal battles—it is about preserving the truth against deliberate erasure. The mainstream narrative continues to blame Muslim activists for the violence, while the actual instigators remain shielded by the state. The testimonies, photographs, and first-hand accounts collected by women protestors and survivors challenge this state-sponsored narrative and ensure that the history of these attacks is not rewritten.

In contrast to past instances of communal violence, where survivors eventually found some measure of justice after decades of struggle, the women of the Delhi riots face an ongoing battle where justice remains entirely out of reach. With Gulfisha Fatima still in jail after four years and many others continuing to fight baseless charges, their struggle is far from over. Their resistance, however, ensures that their stories remain alive, refusing to let the truth be buried under propaganda and state repression.

The women of the 2020 Delhi riots fought not just against targeted violence but against a state determined to criminalise their very existence. Their documentation of the attacks, their refusal to remain silent, and their continued struggle for justice in the face of legal persecution exemplify resilience. In a system that punishes those who seek accountability, their fight is one for survival, memory, and truth. Their resistance stands as a testament to the unyielding spirit of women who refuse to let history be rewritten by those in power.

Women and their unyielding fight for truth

Women who have fought for justice in the aftermath of communal violence in India have done so against overwhelming odds. They have defied a state machinery that actively seeks to erase their suffering, a legal system designed to delay and deny, and a society that too often treats them as collateral damage. Their fight has not only been about personal justice but about exposing the larger structures of power that enable such violence.

Despite decades of struggle, justice remains a distant dream. In Gujarat, where a handful of convictions took place, the state machinery ensured that most perpetrators walked free. In 1984, justice came too late for many survivors, with key political figures being convicted only after decades of relentless legal battles. And in Delhi, justice is yet to arrive—Muslim women who dared to protest against discriminatory laws remain imprisoned while the instigators of violence roam free.

The stories of these women force us to confront an uncomfortable truth: the state is not merely a bystander in communal violence but an active participant, shielding perpetrators and punishing those who seek accountability. Their resilience in the face of such repression is a testament to their courage. But their continued struggle also serves as an indictment of a system that has failed them at every level. This International Women’s Day, their fight must not only be remembered but actively supported—for justice, for truth, and for the right to resist oppression without fear.

Related:

This women’s day CJP celebrates all women in resistance

The women of CJP: Resilient and resolute in their mission to advocate for the rights of all and counter prejudice

Oh, what a year to be a woman! IWD 2023: CJP lists some advocates who paved the way for women’s rights

Wounds still linger

Remembering 1984

The post Surviving Communal Wrath: Women who have defied the silence, demanded accountability from the state appeared first on SabrangIndia.

The imam, a religious reformer and an activist, was ambushed by two masked men in a pick-up truck while visiting the southern city of Gqeberha on Saturday. While police have yet to establish the motive for the hate crime, political parties and LGBTQ+ organizations say Hendricks was targeted because he started a mosque in Cape Town for gay Muslims and called for members of the LGBTQ+ community to be welcomed into Islam. And was not deterred by the many death threats he had received over several years.

IMSD stands by the dictum: “No God, gods, goddesses, prophets or saints may be invoked to justify the killing and/or terrorising of fellow human beings”.

A statement issued by the departed Imam’s colleagues at the Center for Contemporary Islam at University of Cape Town said: “His theology was a liberation theology: God is a God of radical love and justice for all human beings. The safe space created by his work brought relief beyond the community of queer Muslims, extending to refugees, people who were homeless, those marginalised without community and belonging, for whom he provided a space of inclusion”.

Deploring the fact some Muslims were condoning the imam’s assassination on social media, the statement bemoaned that “the compounded horror of such violence and brutality has brought into sharp focus the intense homophobia permeating the Muslim community”.

IMSD notes with concern that this intense homophobia permeating the Muslim community is sadly as true of South Africa as it is of the global Muslim community, India included.

We recall our statement issued in March 2023 strongly condemning the concerted effort by the Muslim rightwing in Kerala — including leaders of the Jamaat-e-Islami, the Indian Union Muslim League (IUML), and some Muslim-run websites — to ridicule, vilify, denigrate and demonise Muslims who are part of the LGBTQIA+ community.

IMSD stands in solidarity with the South African colleagues of the departed Imam and fully supports the call by the US-based Muslims for Progressive Values (MPV) on all Muslims worldwide, “to build a culture of tolerance and curiosity for various interpretations of Islam”.

We call on Indian Muslims in particular, who as a community have been relentless targets of hate politics and hate crimes in today’s ‘new India’, to deplore and eschew any hatred or violence in Islam’s name. Signatories:

1. Anand Patwardhan, IMSD, Documentary Film-maker, Mumbai
2. Arshad Alam, IMSD Co-convenor, Columnist, Delhi
3. Askari Zaidi, IMSD, Senior Journalist, Delhi
4. Feroze Mithiborwala, IMSD Co-Convener, Mumbai
5. Ghulam Rasool Dehlvi, an Alim and Fazil (a classical Islamic scholar), having graduated from a leading Islamic seminary of India, Jamia Amjadia Rizvia (Mau, U.P.)
6. Hasan Ibrahim Pasha, IMSD, Writer, Allahabad
7. Javed Anand, IMSD Co-convener, CJP, Mumbai
8. Kasim Sait, Businessman, Social Activist, Chennai
9. Lara Jesani, Advocate, PUCL, Mumbai
10. Madhu Prasad, IMSD, Social Activist, Delhi
11. Mohammad Imran, PIO, USA
12. Muniza Khan, Citizens for Justice and Peace, Varanasi
13. Qaisar Sultana, Home Maker, Allahabad
14. Qutub Kidwai, IMSD, Islamic Feminist/ Peace Activist, Secretary General AMAN International, Mumbai
15. (Prof) Mohammad Sajjad, Historian, AMU, Aligarh
16. (Dr) Shahnawaz Alam, UP
17. Shamsul Islam, Author, Activist, Delhi
18. Sultan Shahin, Editor-in Chief, New Age Islam, Delhi
19. Teesta Setalvad, IMSD, Secretary CJP, Mumbai
20. Zakia Soman, Co-Convener, Bhartiya Muslim Mahila Andolan
21. Zeenat Shaukat Ali, Islamic Scholar, Director general, Wisdom Foundation, IMSD, Mumbai

Related:

Progressive Muslims condemn the assassination in South Africa of the world’s first gay Imam

The post IMSD condemns the assassination of the world’s first openly gay Imam appeared first on SabrangIndia.

I. Brief history of rape law

Justice Rajiv Shakdher begins his judgment with a historical overview of rape law, emphasising the evolution of the concept of marital rape. He notes that the origins of the Marital Rape Exception (MRE) can be traced back to the doctrine of coverture, which held that a married woman’s legal rights were subsumed by her husband’s. This historical context is crucial for understanding the archaic nature of the MRE, which Justice Shakdher describes as being rooted in a time when women were treated as mere property of their husbands.

II. Separation of powers and judicial restraint

Justice Shakdher addresses the argument that the judiciary should not interfere with legislative decisions, particularly in matters of criminal law. The counsel for one of the intervenors—Men’s Welfare Trust— had argued that if the court were to exercise the powers under Article 226, and strike down MRE, it would have carried out a legislative act thus blurring the Doctrine of Separation of Powers.

Justice Shakdher first establishes via rich case law that in India, the separation of powers is not as rigid as it is in other jurisdictions. Having established it as such, he essentially states that the doctrine does not preclude the judiciary from examining the constitutionality of laws to legislate but to ensure that laws are in compliance with the Constitution (Para 123).

His reasoning behind the court’s power to address the constitutionality of the MRE—against the argument that the Court cannot legislate—is simple and to the point. He states that Article 13 empowers courts to declare void any laws that contravene Part III (Fundamental Rights). Therefore, according to Justice Shakdher, the court’s power includes, as in this case, the authority to deem a law or provision unconstitutional. He states as follows: “The submission that the issues involved concern a policy decision which, in turn, requires wide ranging consultations with members of the public and domain experts misses, if I may say so, the wood for the trees inasmuch as it fails to accept that what the court has before it is a legal issue i.e., whether or not the impugned provisions (which includes MRE) violate a married woman’s fundamental rights conferred under the Constitution.” (Para 125)

Justice Shakdher rejects the notion that judicial restraint should prevent the court from examining the constitutionality of the MRE. To let it be handled by legislature which actually has the means to conduct consultations with a diverse set of stakeholders, it is not an economic/policy issue. According to him, it is a legal issue with alleged violations of fundamental rights and “Side-stepping such issues would be akin to the court seeking “an alibi” for refusing to decide a legal controversy, which it is obliged in law to decide.” (Para 127)

III. Ambit of section 375 of the IPC-Article 14 Test

Justice Shakdher analyses Section 375 of the Indian Penal Code (IPC), which defines rape. He emphasises that rape’s unlawfulness hinges on whether sexual acts were consensual. Section 375’s Clauses (a)-(d) ignore marital status. They apply to all forced sexual acts, except when the offender is a husband. Similarly, married women cannot file criminal charges against their husbands under these clauses. (Para 135.2)

Justice Shakdher identifies consent as central to Section 375. He then examines the Marital Rape Exception (MRE), which treats married and unmarried individuals differently. He concludes MRE violates Article 14 of the Constitution. Why? He applies the Article 14 test: a law’s “intelligible differentia” (clear distinction) must rationally connect to its object. MRE’s marital distinction, he argues, has no rational nexus to Section 375’s goal of criminalizing non-consensual acts. (Para 137.1)

Instead of treating MRE and Section 375 as separate, the judgement treats MRE against Section 375’s core objective. He finds MRE fails this test, as it exempts husbands from liability without justification.

Justice Shakdher’s reasoning behind striking down the Marital Rape Exception (MRE) is compelling not just for its legal soundness but also for the sheer weight of real-life examples he brings forth. His judgement does not merely counter Justice Hari Shankar’s argument that marriage creates a sexual expectation—it systematically dismantles the sexual expectation argument by highlighting multiple instances where a married woman is denied agency over her body, even in situations where fundamental rights to dignity and health should prevail.

One of the most striking aspects of his judgment is his reference to instances where a married woman’s lack of consent is disregarded: when her husband has a communicable disease, when she is unwell, or when the husband is involved in gang rape with co-accused. These examples puncture holes in the argument that marriage inherently implies perpetual consent. As he illustrates:

• Forced sex outside marriage is recognised as “real rape,” yet the same act within marriage is deemed something else.
• A chaste woman or a young girl is more likely to be considered a victim, but a married woman is not.
• A prior sexual relationship is regarded as a reasonable defense on the assumption of consent, yet a married woman’s consent is not even put to test.
• A sex worker has the legal right to refuse sex, but a married woman does not.
• In cases of gang rape where the husband is involved, the co-accused faces the full force of the law, while the husband is exempt merely due to his marital status.
• A married woman has no legal protection even when her husband has a communicable disease or when she herself is unwell. (Para 137.1)

However, Justice Shakdher’s judgement does not stop with disproving the idea of absolute and perpetual sexual expectation in marriage. It goes a step further, challenging the very notion that the State has a legitimate interest in protecting a marriage that functions as a site of tyranny. His judgment is uncompromising in its stance that when husbands are raping their wives, the law cannot seek to preserve such a structure. In his words:

“When marriage is tyranny, the State cannot have a plausible legitimate interest in saving it.” (Para 137.1)

This statement alone renders MRE indefensible under Article 14. The classification between married and unmarried women is not just arbitrary but actively unjust. He applies the test of reasonableness from Slattery v. Naylor (1888) and Kruse v. Johnson (1898), concluding that MRE is manifestly unjust and oppressive. He states:

“If one were to apply the aforesaid test the only conclusion that can be drawn is that the classification between married and unmarried couples in the context of forced sex is not just unequal in its operation but is also manifestly unjust. MRE, in my opinion, is also oppressive as it can find no justification in the minds of reasonable men, for lawmakers could never have intended to make such a law.” (Para 138)

Justice Shakdher critiques the over-reliance on the test of classification, arguing that courts must go beyond rigid categorisation and examine how a law actually operates on the ground. The real effect and impact on those subjected to it must take precedence over remote or indirect consequences, his judgement states, relying on Anuj Garg & Ors. v. Hotel Association of India & Ors.^[2] The Doctrine of Classification must ultimately serve the core principle of equality, not override it. (Para 140)

Applying this to MRE, he highlights its immediate and glaring impact: an unmarried rape survivor can seek protection under various IPC and CrPC provisions, but a married woman is denied the same safeguards. She cannot benefit from identity protection (Section 228A IPC), medical examination provisions (Sections 53A, 164A CrPC), gender-sensitive trial procedures (Sections 26, 154, 161, 309 CrPC), in-camera trials (Section 327 CrPC), or mandatory medical aid (Section 357C CrPC).

He states as follows while declaring the MRE to be violative of Article 14 of the Constitution:

“The fact that the law does not operate even-handedly for women who are similarly circumstanced i.e. subjected to forced sex is writ large and no amount of legal callisthenics will sustain MRE. Therefore, in my view, MRE is bad in law as it violates Article 14 of the Constitution.” (Para 141.1)

IV. On other arguments

Justice Shakdher dismantles the argument that MRE is justified because other IPC provisions are also relationship-based. He clarifies that while some laws exempt spouses from prosecution (e.g., Sections 136, 212, 216, 216A IPC), these apply only to harboring offenders, not committing offenses against a spouse. MRE, however, shields the husband precisely because he is the perpetrator, making the comparison fundamentally flawed.

He also rejects the claim that married women have alternative legal remedies under IPC and other statutes. Section 498A (cruelty), Section 304B (dowry death), and Section 306 (abetment of suicide) do not address rape—they deal with specific forms of abuse. Even the Domestic Violence Act (D.V. Act), while recognizing sexual abuse, does not criminalize marital rape. Instead, it provides civil remedies like protection orders and financial relief but denies the survivor the ability to prosecute her rapist husband under Section 376(1) IPC.

The result? The judgement points out to a glaring legal loophole where a wife can report every other crime committed by her husband except rape. This exposes the hollowness of the claim that existing laws protect married women against sexual violence.

V. MRE violates Article 21 of the Constitution

Justice Shakdher asserts that the MRE violates Article 21 of the Constitution, which guarantees the right to life and personal liberty. He argues that the MRE undermines a woman’s right to bodily integrity and autonomy by immunizing husbands from prosecution for non-consensual sexual acts within marriage.

Justice Shakdher states, “The right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty which encompasses her right to protect her physical and mental being. Non-consensual sex destroys this core by violating what is dear to her, which is, her dignity, bodily integrity, autonomy and agency and the choice to procreate or even not to procreate. While marital rape leaves physical scars, it inflicts much deeper scars on the psyche of the victim which remain with her years after the offence has occurred.”  (Para 163)

Therefore, denying a married woman the right to legally recognize rape by her husband strikes at the core of her right to life and liberty under Article 21.

VI. MRE Violates Articles 15 and 19(1)(a) of the Constitution

Justice Shakdher also examines the MRE’s impact on Articles 15 and 19(1)(a) of the Constitution, which guarantee protection from discrimination and the right to freedom of expression, respectively. He argues that the MRE perpetuates gender discrimination by treating married women differently from unmarried women.

Justice Shakdher states, “The guarantee of freedom of expression includes a woman’s right to assert her sexual agency and autonomy. The fact that this right is also secured by Article 21 (which is available to non-citizens as well) lends strength to the right conferred on a married woman to express herself and not be subjected to non-consensual sexual intercourse by her husband.”  (Para 166.1)

VII. Presumption of constitutionality of pre-constitutional statutes

The judgment addresses the presumption of constitutionality concerning pre-constitutional laws like the IPC, asserting that such laws are not immune from constitutional scrutiny. While Article 372 saves pre-constitutional laws, it does not shield them from being tested against fundamental rights under Articles 14, 15, 19(1) (a) and 21.

The judgment acknowledges the argument from Navtej Singh Johar vs Union of India and Joseph Shine that pre-constitutional statutes do not enjoy an inherent presumption of constitutionality.[3]

Further, the judgement emphasizes the evolving nature of constitutional interpretation. Relying on Anuj Garg, it holds that laws, even if constitutional at inception, can become unconstitutional due to societal changes. Thus, outdated legal provisions must be reassessed to align with contemporary constitutional values. (Para 172.1)

VIII. Foreign decisions, international covenants, and Indian parliamentary reports

The judgment pushes back against objections to relying on foreign decisions and international covenants, pointing out that legal systems worldwide have already moved past the idea that marriage grants immunity from rape. Cases like CR v. UK (ECHR) and People v. Liberta (New York Court of Appeals) make it clear that the marital rape exemption has no place in modern law. Courts in Nepal and the Philippines have also ruled that forced sex in marriage is still rape, reinforcing that consent does not become irrelevant after marriage.

It recognises the importance of international conventions like CEDAW and the Beijing Declaration emphasize gender equality and protection against sexual violence, making it clear that MRE goes against India’s global commitments. Courts in India have previously used international law to interpret domestic statutes, and the judgment follows that precedent.

As for parliamentary reports, multiple committees—including the Justice Verma Committee—have called for scrapping MRE. The fact that the legislature hasn’t acted doesn’t mean courts can’t step in. Navtej Singh Johar made it clear that legislative inaction is a “neutral fact” and doesn’t block judicial review.  The judgement recognises this and follows the same principle.

IX. On miscellaneous issues

Conjugal expectations and marital rights

The judgment critiques the notion of “conjugal expectation,” clarifying that while legitimate during a harmonious marriage, it cannot equate to an unfettered right to non-consensual sex. It references Section 9 of the Hindu Marriage Act (HMA) and Order XXI Rule 32 of the Civil Procedure Code (CPC), noting that even restitution decrees for conjugal rights cannot mandate consummation. The law must respect marital consent, not impose obligations. (Para 146)

Marriage as an institution vs. individual rights

The judgment rejects the argument that excluding marital rape from Section 375 IPC protects the institution of marriage. It emphasizes that marriage is a union of individuals rooted in mutuality, respect, and autonomy. When these principles are violated, the institution collapses. The state’s role is limited to recognizing/dissolving marriages via laws like the HMA, Domestic Violence Act (D.V. Act), and IPC provisions (Sections 375–376B), not shielding perpetrators of sexual violence (Para 148.3).

Labeling marital rape as “rape”

The judgment argues that sexual assault by a husband falling under Section 375 must be labeled as rape to reflect societal disapproval. It critiques societal stigma against victims, not perpetrators, and dismisses the distinction between marital rape and other IPC offenses (e.g., hurt under Sections 319–323, cruelty under Section 498A). Labeling is critical for legal accountability. (Para 149)

False cases and empirical evidence

The judgment refutes fears of false cases, citing National Family Health Survey (NFHS-4) 2015–16 data showing 99% of sexual assaults go unreported. It dismisses the argument as exaggerated, noting courts handle false complaints under IPC provisions like Section 498A (Para 151). The state’s interest in protecting women from abuse outweighs unfounded concerns about misuse.

Here too, we can see the contrast in Justice Rajiv Shakdher’s judgement and Justice Hari Shankar’s judgement in terms of reliance on data. As mentioned in our analysis of Justice Harishankar’s judgement, his analysis lacks empirical data or backing of scholarly work when he asserts that rape by a stranger and non-consensual sexual activity by a husband are not equal in the terms of the psychological trauma they inflict on the woman.

Invasion of the private sphere

The judgment rejects claims that prosecuting marital rape invades private marital space. It distinguishes rape from other marital crimes (e.g., cruelty, hurt) by emphasizing constitutional rights. Citing Joseph Shine vs Union of India (2018), it holds that privacy cannot shield rights violations, and marital intimacy is not exempt from constitutional scrutiny (Para 152).[4] The judgment dismisses arguments about evidentiary difficulties, equating marital rape to other private-space crimes. 

Conclusion

Justice Rajiv Shakdher’s judgment in RIT Foundation is a masterclass in constitutional adjudication, dismantling the marital rape exception (MRE) not merely as a legal anomaly but as a moral affront to India’s republican ethos. By anchoring his analysis in the lived realities of women—where marriage becomes a license for tyranny—he transcends abstract doctrinal debates to expose the MRE’s core flaw: its reduction of women to chattel, stripped of autonomy, dignity, and bodily integrity.

Justice Shakdher’s reasoning is a rebuke to judicial timidity. He rejects the facile argument that courts must defer to legislative “policy choices,” reminding us that the judiciary’s duty is to safeguard fundamental rights, not shield regressive laws from scrutiny. His invocation of Article 13—declaring unconstitutional any law that violates Part III—is a clarion call for courts to actively engage with societal evolution, rather than entombing themselves in the formalism of “separation of powers.”

The judgment’s brilliance lies in its refusal to treat marriage as a sacred cow. It dissects the MRE’s “conjugal expectations” myth, revealing it as a fig leaf for systemic misogyny. By contrasting the legal protections afforded to unmarried rape survivors with the abject denial of justice for married women, it lays bare the MRE’s arbitrary cruelty.

Yet, Justice Shakdher’s verdict is more than a legal victory; it is a philosophical manifesto. His assertion that “when marriage is tyranny, the State cannot have a legitimate interest in saving it” challenges the very premise of a legal regime that prioritizes familial “stability” over individual rights. This is not merely about criminalizing marital rape—it is about redefining marriage itself as a partnership of equals, not a hierarchy of domination.

In contrast, Justice Hari Shankar’s deference to legislative inaction and his elevation of marriage as an institution above constitutional rights represent a jurisprudential throwback, clinging to a vision of the law as a tool for social control rather than liberation. The split verdict, therefore, is not merely a clash of legal opinions but a microcosm of India’s broader struggle between tradition and transformation.

Justice Shakdher’s judgment is a testament to the Constitution’s living spirit—a reminder that rights are not mere parchment promises but living guarantees that demand constant vigilance. By striking down the MRE, he does not merely correct a legal wrong; he reaffirms the judiciary’s role as the Constitution’s moral compass, ensuring a future where no woman’s body is subjected to patriarchal entitlement. In doing so, he invites us to reimagine justice not as a compromise between competing interests, but as an uncompromising commitment to human dignity.

(The author is part of the legal research team of the organisation)

[1] 2022 SCC OnLine Del 1404

^[2]  (2008) 3 SCC 1

[3] (2018) 10 SCC 1

[4] (2019) 3 SCC 39

Related:

D*ck or fist

A Licence to Violate: Chhattisgarh HC’s ruling on marital rape exposes a legal travesty’

The post When marriage is tyranny: Justice Shakdher’s judgment reads down the marital rape exception as a constitutional imperative appeared first on SabrangIndia.

While Justice Rajiv Shakdher struck down the MRE, Justice C. Hari Shankar dismissed the petitions—upholding the constitutional validity of the MRE. This article will focus on Justice C. Hari Shankar’s opinion that upheld the constitutionality of the provisions, essentially denying any woman recourse under law prosecuting rape within the institution of marriage.

Facts

• The RIT Foundation, along with the All-India Democratic Women’s Association (AIDWA) and two other individuals, filed a petition challenging the marital rape exception (MRE) under Section 375, Exception 2 of the Indian Penal Code (IPC) 1860. The petition argued that the MRE should be struck down as it violated the constitutional rights of women and perpetuated gendered violence and discrimination.

Provisions involved

The following provisions were challenged:

• Section 375, Exception 2 of the IPC: This exception stated that sexual intercourse by a man with his own wife, who is not under 18 years of age, was not considered rape.
• Section 376B of the IPC: This section dealt with the punishment (2 years) for rape committed by a husband who was separated from his wife.
• Section 198B of the Code of Criminal Procedure (CrPC):  This sections states that no court shall take cognisance of an offence punishable under section 376B of the Indian Penal Code (IPC) where the persons are in a marital relationship, except upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been filed or made by the wife against the husband.

These abovementioned provisions remain in the same form in the Bharatiya Nyaya Sanhita, 2023 with different section numbers via Sections 63 and 67 of the BNS and Section 221 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Arguments advanced against MRE:

• • The MRE violated the constitutional goals of autonomy, dignity, and gender equality enshrined in Articles 15, 19(1) (a), and 21 of the Constitution.
  • The MRE treats women as the property of their husbands after marriage, denying them sexual autonomy, bodily integrity, and human dignity as guaranteed by Article 21.
  • The MRE violated the reasonable classification test of Article 14 as it created a distinction between married and unmarried women, denying equal rights to both.
  • The MRE should be struck down, and the punishment under Section 376B should also be invalidated as it discriminated between offences committed by separated husbands, actual husbands, and strangers.

Arguments for MRE’s constitutionality:

• • The crux of these arguments was twofold—court’s lack of power to read down the MRE thus creating a new offence and the fact that legislature had made a conscious decision to not label non-consensual sexual act between husband and wife as rape to protect the institution of marriage, by extension, families and progeny thus there is a legitimate object that the state is seeking to achieve via the MRE.

Justice C. Hari Shankar began his judgment by outlining the context and the specific challenge before the court. The petitioners argued that Exception 2 to Section 375, which states that sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape, is unconstitutional. They contended that this exception violates Articles 14, 19(1)(a), and 21 of the Constitution, which guarantee equality before the law, freedom of speech and expression, and protection of life and personal liberty, respectively. The petitioners emphasized the importance of sexual autonomy and consent, arguing that the exception undermines these principles by immunizing husbands from prosecution for non-consensual sexual acts within marriage.

On original objective and the continuing legislative intent

Justice C. Hari Shankar addressed the original objective and the continuing legislative intent behind the Marital Rape Exception (MRE) in his judgment. He emphasised that the original objective of the MRE, as conceived in the 1860 IPC, was not based on the outdated “Hale dictum,” which suggested that marriage implied a wife’s consent to sexual intercourse with her husband. Instead, the MRE was rooted in the unique nature of the marital relationship and the need to balance individual rights with the preservation of the institution of marriage.

He stated:

“There is nothing to indicate that the ‘marital exception to rape,’ contained in the Exception to Section 375 of the IPC, or even in the proposed Exception in Clause 359 of the draft Penal Code, was predicated on the ‘Hale dictum,’ which refers to the following 1736 articulation, by Sir Matthew Hale: ‘The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband, which she cannot retract.’ Repeated allusion was made, by learned Counsel for the petitioners, to the Hale dictum. There can be no manner of doubt that this dictum is anachronistic in the extreme, and cannot sustain constitutional, or even legal, scrutiny, given the evolution of thought with the passage of time since the day it was rendered. To my mind, however, this aspect is completely irrelevant, as the Hale dictum does not appear to have been the raison d’être either of Section 359 of the draft Penal Code or Section 375 of the IPC.” [Para 13]

Justice C. Hari Shankar further explained that the continuing legislative intent behind retaining the MRE is to preserve the institution of marriage. He highlighted that the legislature, in its wisdom, has chosen to treat non-consensual sexual acts within marriage differently from those outside of marriage. He argued that this distinction is based on an intelligible differentia that has a rational nexus to the object of preserving the marital institution.

In essence, Justice C. Hari Shankar maintained that the continuing legislative intent behind the MRE is to protect the institution of marriage by distinguishing between non-consensual sexual acts within marriage and those outside of it. He emphasized that this distinction is not arbitrary but is based on a rational assessment of the unique dynamics of the marital relationship and the broader societal interests at stake.

On rational nexus and intelligible differentia

Justice C. Hari Shankar further analyses the concept of “intelligible differentia” and “rational nexus” in the context of Article 14 of the Constitution.

His interpretation rests on the foundational premise that the marital relationship is intrinsically distinct from all other forms of relationships, particularly in that it carries an inexorable incident of a legitimate expectation of sexual relations.

He articulates this position as follows:

“The primary distinction, which distinguishes the relationship of wife and husband, from all other relationships of woman and man, is the carrying, with the relationship, as one of its inexorable incidents, of a legitimate expectation of sex.”

This formulation forms the central pillar of his justification for treating non-consensual sexual acts within marriage differently from those outside of it. The judgment thus constructs an argument wherein marriage, as a legal institution, grants a presumption of consensual intimacy, differentiating it from other relationships where consent must be independently established.

He states:

“The legislature is free, therefore, even while defining offences, to recognise ‘degrees of evil.’ A classification based on the degree of evil, which may otherwise be expressed as the extent of culpability, would also, therefore, be valid. It is only a classification which is made without any reasonable basis which should be regarded as invalid. While the Court may examine whether the basis of classification is reasonable, once it is found to be so, the right of the legislature to classify has to be respected. Where there is no discernible basis for classification, however, or where the basis, though discernible, is unreasonable or otherwise unconstitutional, the provision would perish.” [Para 144]

Internal inconsistencies within the IPC framework

However, this reasoning, while maintaining internal consistency within the judge’s interpretative framework, encounters contradictions within the broader legal architecture of the IPC—particularly when juxtaposed with Section 376B, which criminalizes non-consensual intercourse between a husband and wife during separation.

Section 376B, which prescribes a lesser punishment (up to two years of imprisonment), nonetheless acknowledges that marital status alone does not create an absolute or irrevocable expectation of sexual relations. This provision, therefore, implicitly recognizes a wife’s autonomy and the necessity of consent, at least in specific contexts. The logical inconsistency emerges in two key aspects:

1. Recognition of autonomy in judicial and non-judicial separations

1. • Section 376B (punishment for rape by a husband during separation) does not require a court-ordered decree of separation for its application, meaning that a wife living separately from her husband—without a state-recognized order—still retains legal protection against non-consensual intercourse involving her own husband.
   • This directly contradicts the fundamental assumption of the MRE, which presumes that marriage inherently entails continuous consent to sexual relations. If the institution of marriage is so distinct and special, then why does the law acknowledge that consent is required during separation, even without formal judicial recognition? It is to ensure that all institutions are within the bounds of the Constitution and the value system it espouses. To this extent, the Criminal Law Amendment Act, 1983 added the current 376B (it was added as 376A but was later renumbered to 376B in 2013 after the Criminal Law Amendment, 2013).

2. The status of underage marital rape under IPC

1. • The inconsistency is further compounded by the fact that the IPC (via the Independent Thought vs Union of India judgement) criminalizes non-consensual intercourse with a wife below the age of 18, thereby recognizing the primacy of consent in certain marital contexts.
   • If the marital bond inherently carries an expectation of sexual relations, as the judgment asserts, then the legal system’s refusal to extend this principle to child marriages undermines the assumption of an absolute and uninterrupted sexual expectation within marriage. However, it has been extended to bring it in consonance with the constitutional principles in Independent Thought vs. Union of India.[2]

The judgment by Justice C. Hari Shankar relies on the intelligible differentia test to uphold the MRE, but the incoherence in its application becomes evident when viewed through the lens of Section 376B and related provisions. If marriage is a uniquely protected institution, then its sanctity should logically override even non-judicial separations—yet it does not. This suggests that when the law is compelled to acknowledge a wife’s individual autonomy, it does so in ways that directly conflict with the underlying justification for the MRE.

One could argue that a clear distinction exists in the punishments, as spousal rape during separation carries a lighter sentence (two years) compared to the harsher penalties under Section 375. However, this distinction collapses under scrutiny because:

• The recognition of consent during separation (including non-judicial separation) means that the “legitimate expectation of sex” argument is not absolute.
• The law, therefore, implicitly concedes that the marital institution does not override a wife’s right to autonomy in every instance.
• If the expectation of sexual relations within marriage were as absolute as the judgment suggests, then non-consensual intercourse during a non-court-ordered separation should not have been an offense at all.

The IPC’s contradictions — recognizing marital consent in separations (Section 376B) and criminalising underage marital rape — dismantle the “intelligible differentia” justifying the marital rape exception (MRE). By acknowledging that consent matters even within marriage, the law inadvertently concedes that marital status alone cannot negate autonomy. This fractures the MRE’s foundational logic: if a separated or underage wife retains constitutional rights to bodily integrity (Articles 14, 21), why does cohabitation erase them? The disparity in punishments (2 years vs. 10 for non-marital rape) further portrays a patriarchal hierarchy, implying a husband’s “claim” outweighs a wife’s dignity — a stance antithetical to Article 15’s prohibition of gender discrimination and to Constitutional Morality as espoused in Navtej Singh Johar vs Union of India.[3]

On Article 19 and 21

Justice C. Hari Shankar also addresses the argument that the exception violates Article 19(1)(a) by restricting a married woman’s right to sexual self-expression. He rejects this contention, stating that the exception does not compromise a woman’s right to consent or refuse consent to sexual relations. Instead, it merely recognises the complex interplay of rights and obligations within a marital relationship. Similarly, he dismisses the claim that the exception infringes upon Article 21, asserting that there is no fundamental right under the Constitution for a woman to prosecute her husband for rape in the context of marriage. It is here that Justice C. Hari Shankar makes deeply problematic observations that highlight and symbolise the underrepresentation of women and their voices, both in the society and in the judiciary that has contributed to emergence views such as follows.

He states as follows:

“If one were to apply, practically, what has been said by Mr. Rao of the crime of “rape”, the entire raison d’etre of the impugned Exception becomes apparent. As Mr. Rao correctly states, rape inflicts, on the woman, a “deep sense of some deathless shame”, and results in deep psychological, physical and emotional trauma, degrading the very soul of the victim. When one examines these aspects, in the backdrop of sexual assault by a stranger, vis-à-vis nonconsensual sex between husband and wife, the distinction in the two situations becomes starkly apparent. A woman who is waylaid by a stranger, and suffers sexual assault – even if it were to fall short of actual rape – sustains much more physical, emotional and psychological trauma than a wife who has, on one, or even more than one, occasion, to have sex with her husband despite her unwillingness. It would be grossly unrealistic, in my considered opinion, to treat these two situations as even remotely proximate. Acts which, when committed by strangers, result in far greater damage and trauma, cannot reasonably be regarded as having the same effect, when committed by one’s spouse, especially in the case of a subsisting and surviving marriage. The gross effects, on the physical and emotional psyche of a woman who is forced into non-consensual sex, against her will, by a stranger, cannot be said to visit a wife placed in the same situation vis-à-vis her husband. In any event, the distinction between the two situations is apparent. If, therefore, the legislature does not choose to attach, to the latter situation, the appellation of ‘rape’, which would apply in the former, the distinction is founded on an intelligible differentia, and does not call for judicial censure.” [Para 184]

Essentially, Justice C. Hari Shankar says that rape by a stranger is more psychologically damaging than rape by a husband of his wife.

For starters, this line of reasoning differentiates the intensity of suffering on the basis of the identity of the victim’s vis-a-vis her relation to the accused depending on whether the accused is the victim’s husband or a stranger. This exercise was unnecessary, if not deeply flawed and regressive.

Moreover, the same Section 376 which punishes rape has a stricter punishment for aggravated rape—which punishes rape by people in authority or relatives. Therefore, the law deems rape by people who are in positions of authority/trust more serious than other cases. This distinction should have prompted Justice C. Hari Shankar to delve into the issue with much more sensitivity to the suffering of a victim which it failed to do.

This is not to say that the relation between people in authority and the victims is same as marital relationship. The reason for quoting this example is to show that trauma cannot be said to be less or limited when a husband commits rape when compared to a when a stranger commits the offence.

Secondly, a simple search would have given Justice Hari Shanker studies and scholarly research that discussed how traumatic it is for women to be raped by their own husbands. From Diana Russell’s pioneering work on Rape in Marriage in the 1980s to recent studies on marital rape that reveal its devastating physical, reproductive, sexual, and psychological impact on women well into old age, there is well-established scholarship on the effects of marital rape. Given this, Justice C. Hari Shankar’s casual categorization of these traumas into different tiers is deeply concerning if not problematic (Bhat and Ullman, 2014;  Band-Winterstein T. and Avieli, 2022)[4][5]

On creation of a new offence

Justice C. Hari Shankar further considers the potential consequences of striking down the exception. He notes that doing so would create a new offence of “marital rape” and would necessitate a re-evaluation of the punishments prescribed under Section 376 of the IPC. He also highlights the practical difficulties that would arise in proving consent in cases of marital rape, given the private nature of the marital bedroom. The judge argues that these considerations weigh in favour of retaining the exception, as the legislature has the authority to make policy decisions regarding criminal law.

He maintained that the MRE is an integral part of Section 375 of the Indian Penal Code (IPC) and that removing it would fundamentally alter the scope of the offense of rape. He argued that the MRE is not merely an exception but a critical component of the legal framework that defines the offense of rape.

He stated:

“Offences may legitimately be made perpetrator-specific or victim-specific. In the present case, Section 375, read as a whole, makes the act of ‘rape’ perpetrator-specific, by excepting, from its scope, sexual acts by a husband with his wife… The specification of the identity of the man, and his relationship vis-à-vis the woman, which presently finds place in the impugned Exception might, therefore, just as well have been part of the main provision.” [Para 203]

However, MRE itself is what makes the offense of rape perpetrator-specific, and removing it would merely restore the general applicability of the offence to all individuals, regardless of their marital status. This view is supported by the Supreme Court’s decision in Independent Thought vs Union of India. In this case, the same provision was dealt with. The Marital Rape Exception, before the Independent Thought judgement, applied to non-consensual sexual acts with wife who is 15 years and above. Since it contrasted the Protection of Children from Sexual Offences Act, 2012 and the overall Constitution, the provision was read down to have it applied to only acts with a wife who is 18 and above thus protecting those women who are less than 18 years of age.

This is what the court said in Independent Thought addressing the concerns over it creating a new offence:

 One of the doubts raised was if this Court strikes down, partially or fully, Exception 2 to Section 375 Indian Penal Code, is the Court creating a new offence. There can be no cavil of doubt that the Courts cannot create an offence. However, there can be no manner of doubt that by partly striking down Section 375 Indian Penal Code, no new offence is being created. The offence already exists in the main part of Section 375 Indian Penal Code as well as in Section 3 and 5 of POCSO. What has been done is only to read down Exception 2 to Section 375 Indian Penal Code to bring it in consonance with the Constitution and POCSO. 

The judgement by Justice C. Hari Shankar does not deal with this prima facie similarity between the reasoning of Independent Thought and the reasoning of petitioners as to why reading down MRE does not create a new offence. He states as follows:

But, assert learned Counsel for the petitioners, by striking down the impugned Exception, this Court would not be creating an offence. They rely, for this purpose, on Independent Thought , in which it was held that the Supreme Court was not creating an offence by reading down the impugned Exception to apply to women below the age of 18. The analogy is between chalk and cheese. The situation that presents itself before us is not even remotely comparable to that which was before the Supreme Court in Independent Thought. We are not called upon to harmonise the impugned Exception with any other provision. The petitioners contend that the impugned Exception is outright unconstitutional and deserves to be guillotined. Would we not, by doing so, be creating a new offence?

We do not see any engagement with the proposition advanced by the petitioners or with the reasoning in Independent Thought. Striking down the marital exception would not create a new offence but would merely extend the application of Section 375 to all individuals, irrespective of marital status. Justice C. Hari Shankar’s concern—that such a move would turn previously non-offenders into offenders and that criminalization is the legislature’s prerogative—remains unreasoned when examined in light of the approach taken in Independent Thought.

Conclusion

Justice C. Hari Shankar’s judgement is a mix of genuine judicial restraint and a deeply flawed reasoning that puts women and their autonomy on the back burner, for the purpose of patriarchal notions of desire in the garb of sanctity of marriage. His reasoning after a point goes from flawed to problematic when he states the following: “Any assumption that a wife, who is forced to have sex with her husband on a particular occasion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, in my view, is not only unjustified, but is ex facie unrealistic.” [Para 130]

While he is entitled to present his judicial opinion, he does not provide any reasoning for differentiating the trauma of marital rape from that of rape by a stranger. We do not know if he relied on any survey, or on what basis he came to his conclusion. The assertion lacks empirical evidence or scholarly backing and instead relies solely on personal assumptions, which are disconnected from established research on marital rape trauma.

Justice C. Hari Shankar’s wisdom in exercising judicial restraint is robust, tenable and sound when it relates to the argument that such change must come from the legislature. While it might not be entirely agreeable, there is a level of doctrinal firmness to it.

However, his views on marriage, expectations of sex and autonomy of women struggle to find their ground in the concepts of constitutional morality, ethical logic but flow with the flaws of regressive outlook on what a marriage is. These flaws stem not only from an inadequate understanding of how the law attributes sanctity to marriage but also from a superficial and reductive view of the emotional and psychological trauma endured by married women when their trust is violated by their own husbands through marital rape. In this sense, the flaws not only are legal, but also moral.

The novel contribution of this judgement is not the exercise of judicial restraint but an expression of outdated perception of marriage—one that subordinates constitutional morality to patriarchal tradition.

In the next part, the judgement of Justice Rajiv Shakdher declaring the MRE to be unconstitutional and his reasoning in answering some pertinent questions raised by Justice C. Hari Shankar will be discussed.

(The author is part of the legal research team of the organisation)

[1] 2022 SCC OnLine Del 1404

[2] [2017] 10 SCC 800

[3] (2018) 10 SCC 1

[4] Bhat, M. and Ullman, S.E., 2014. Examining marital violence in India: Review and recommendations for future research and practice. Trauma, Violence, & Abuse, 15(1), pp.57-74.

[5] Band-Winterstein, T. and Avieli, H., 2022. The lived experience of older women who are sexually abused in the context of lifelong IPV. Violence against women, 28(2), pp.443-464.

Also Read:

When marriage is tyranny: Justice Shakdher’s judgment reads down the marital rape exception as a constitutional imperative

Related:

D*ck or fist

A Licence to Violate: Chhattisgarh HC’s ruling on marital rape exposes a legal travesty’

The post How Justice C Harishankar, in upholding the exception to marital rape, delivered a reasoning fir for the dark ages appeared first on SabrangIndia.

As Imam Muhsin famously said, “The heart is not big enough to contain both fear and faith. You choose.” He chose faith, and was willing to be true to his interpretation of Islamic teachings, despite years of experiencing threats of violence from conservative extremists. Through his teachings and queer-affirming Al-Ghurbaah Mosque in South Africa, he inspired Muslims locally and globally to live authentic lives without abandoning their faith.

In addition to our gratitude for his work overall, we at MPV particularly want to acknowledge his contributions to our advocacy efforts in Urdu, including delivering this lecture to Urdu-speaking audiences.

While there is much we don’t yet know about the circumstances of his death, we know too well the many death threats Imam Muhsin had received over the years. We are disgusted by those condoning his murder and it is this theology of hate and of homophobia that has resulted in the intense threats on his life. We join Muslims and allies around the world in calling for the South African government to leave no stone unturned in investigating the motivation for his murder, and as a possible hate crime.

The attack on Imam Muhsin comes at a chilling time of increased violence against LGTBQ people all around the world, including in the US, and we call on Muslims to show compassion and support for this increasingly vulnerable population.

We join Muslims and allies worldwide in offering prayers for justice and healing for all of those impacted by this horrific killing. We call on all Muslims, regardless of our political and religious differences, to build a culture of tolerance and curiosity for various interpretations of Islam. At MPV, we will continue to advocate for freedom of religion for all, and freedom from persecution for all, demonstrating the beauty of Islam just as Imam Muhsin did.

A Statement from the Colleagues of Imam Muhsin at the Center for Contemporary Islam at University of Cape Town.

Indeed to Allah we belong, and indeed, to Allah we return. We are reeling from the targeted assassination of Imam Muhsin Hendricks, the first openly queer Imam in South Africa. Imam Muhsin was a pioneer in the rights of queer Muslims having previously led The Inner Circle and more recently the Al-Ghurbaah Foundation. He was recognised as a global leader who created a space to reconcile Islam, faith and sexual diversity, and provided a refuge for young queer Muslims that had been rejected in their homes. Muhsin courageously tracked a path of religious inclusivity and a vision of Islam as a home for all.

His theology was a liberation theology: God is a God of radical love and justice for all human beings. The safe space created by his work brought relief beyond the community of queer Muslims, extending to refugees, people who were homeless, those marginalised without community and belonging, for whom he provided a space of inclusion.

Despite this, we are also reeling from the ways in which some Muslims are condoning his assassination on social media. The compounded horror of such violence and brutality has brought into sharp focus the intense homophobia permeating the Muslim community.

This is a time for each of us as individuals, as well as in our collectives, whether in mosques, in community organisations, in our Palestinian solidarity formations, to deeply reflect on the ways in which our work for justice must be all-inclusive, and the right to dignity is unconditional.

In the last two years we have witnessed a genocide enabled by the language of dehumanisation of Palestinian people. It is the same underlying logic of dehumanisation that enables a targeted assassination of a queer human being who stood up for justice. We must recognise that when we are silent in the face of homophobia, patriarchy and

Zionism, we enable not only violent systems, but systems that perpetuate violence and death. We are both ethically and spiritually accountable.

The Prophet Muhammad (pbuh) was sent as “Rahmatan li-l-Aalamin,” a mercy to all worlds, everywhere in all times. Every human being deserves justice and dignity.

Imam Muhsin has completed his work on this earth; it is for us to begin ours. Let us have the difficult conversations, let us grow seeds of love, justice and compassion. Let us truly engage what it might be to follow the sunnah of the Mercy to the worlds.

We salute your courage, Shaheed (Martyr) Imam Muhsin. May your soul be embraced in love and compassion by Allah. Dear contented soul, return to your Lord; may your Lord be pleased with you, may you be pleased with your Lord. May the work of justice, love and inclusivity that you worked so hard towards be realised. May we grow our communities in the work of justice, love and all-inclusive dignity.

The post Progressive Muslims condemn the assassination in South Africa of the world’s first gay Imam appeared first on SabrangIndia.