The Decision In Ram Dhawan: A Pressing Need To Introduce Incestuous Rape Under Indian Criminal Law
Rape under Indian law is defined as committing an act of sexual intercourse forcefully, while incestuous rape would stand for having forceful sexual intercourse within the prohibited degree of relationship which includes father-daughter, mother-son, brother-sister, uncle-niece, and aunt-nephew. Incestuous rape would be far more demeaning and traumatising to the victim because as compared to rape, in the present scenario the betrayal arises out of someone the victim wholeheartedly trusts. In totality, the act of incestuous rape not only causes the victim physical trauma and pain but also psychologically disturb him/her as the act is a betrayal of trust which is irreparable. While many scholars in India question the extent of such an offence, as per the 2012 National Crime Records Bureau (NCRB) reports there were 24,915 cases of rape reported out of which in 98.2% cases the accused were well-known to victims. This further affirms the need to have a separate law for incestuous rape as the same is growing and ever prevalent in the Indian sub-continent. The commentary analyses the case of Ram Dhawan @ Ramdev v State where the Delhi High Court addressed the need for incestuous rape to find a place under Indian criminal law and recommended amending the sentencing provisions for a crime of such a nature.
The case revealed the heinous act of rape being committed by the father on his own daughter. On the intervening night of September 2005, the father committed the act of rape on his daughter even though she had resisted. Further, the act was committed multiple times and any resistance was silenced by threatening to kill the victim. At last, when the mother came to visit, the victim confided in her and a First Information Report (FIR) came to be filed. The Trial Court in its judgment ruled for the accused to undergo life imprisonment and the same was appealed by the Accused which led to the case being listed before the Honble Delhi High Court. The Court while affirming the decision of the Trial Court held that casting aspersions on the veracity of the victims statement was inefficient and incorrect as in cases of rape, the sole testimony of the victim was sufficient to convict the Appellant. Furthermore, the court noted that from the facts and circumstances represented it is patently clear that the statements made by the victim in her FIR and Court are identical and hence there can be no other interpretation taken or possible.
The court explicitly did not explicitly refer to incestuous rape but while affirming the sentence passed by the Trial Court against the Appellant, the court stated that these kinds of persons deserve no reprieve, and this Court should not reduce the sentence of life imprisonment. Furthermore, the court reiterated the observations made by the Apex Court decision in State v Asha Ram:
Ordinarily, the offence of rape is grave by its nature. Moreso, when the perpetrator of the crime is the father of his own daughter it is graver and the rarest of rare, which warrants a strong deterrent judicial hand. Even in ordinary criminal terminology, rape is a crime more heinous than murder as it destroys the very soul of a helpless woman. This is more so when the perpetrator of the grave crime is the father of the victim girl. Father is a fortress, refuge, and the trustee of his daughter.
While the case made a valiant attempt to practically punish incestuous rape by imposing life imprisonment, the legislative recognition of incestuous rape is still implied under Section 376 (2) (f) of the Indian Penal Code (IPC) which covers relatives, guardian, or teacher within its ambit. The same leads to two concerns namely extent of punishment administered basis degree of relationship and extent of application to men. Section 376 administers punishment for rape whereby minimum imprisonment of 10 years and fine is payable. While the same has been legislatively provided for, in several cases the punishment imposed on the father or brother has extended to merely 5 or 7 years. Additionally, by encompassing all family members under the head of relatives or guardians, the statute seems to generalize the degree of the relationship and its impact on the victim. In the case of State v Asha Ram, the Apex Court while enunciating on incestuous rape stated that:
There can never be a graver and more heinous crime than the father being charged of raping his own daughter. He not only delicts the law but it is a betrayal of trust. The father is the fortress and refuge of his daughter in whom the daughter trusts. Charged of raping his own daughter under his refuge and fortress is worse than the gamekeeper becoming a poacher and treasury guard becoming a robber.
This categorically proves that the degree of relationship under incestuous rape will have to be considered while sentencing the accused as unwanted sexual advances by some are far more impactful physically and mentally than others. Secondly, provisions addressing rape in India cover only women under their ambit. Though there has been a constant plea to make these provisions gender neutral, the legislature is yet to amend the law. In absence of Section 376 being gender neutral, young boys who are prey to the lustful eyes of their relatives will not be able to seek the protection of the law if raped. As per a study conducted by the Family Planning Association of India, one out of six boys are abused and hence a section addressing their protection should be given paramount attention by the legislature.
As addressed above, the main problem with the application of Section 376 to incestuous rape cases is the subjectivity given to the judiciary. In a number of cases the judiciary has opted to administer minimum punishment on the accused without understanding the debilitating effect an incestuous relationship has on a victim. In the case of Dheeraj Singh v State of Uttarakhand, the court sentenced a father who had raped his daughter to 7 years of imprisonment while in Shri Satish Mishra v Delhi Administration and Ors. the court sentenced the father to 10 years of imprisonment. More importantly in Ambaram v State of Madhya Pradesh the court while sentencing the father to life imprisonment concluded the following:
If the protector himself becomes violator, the degree of vulnerability becomes greater and according to us, leniency in passing the sentence finds no place in such cases. We are of the view that he should be sentenced to life imprisonment.
The paragraph conclusively summarizes the need for objective punishment to be imposed in the cases of incestuous rape cases as subjective punishments may not represent the pain the victim has suffered. The Honble Delhi Court echoed the said feeling in Khem Chand v State of Delhi whereby it was observed that while sentencing in a rape case involving a minor girl, the Court must consider whether the said act of the rapist led to betrayal of trust as there cannot be a closer relationship than a father and daughter.
Recommendations and Suggestions
The need for a law is paramount and urgent. Looking at similar jurisdictions, the United Kingdom (UK) enacted the Sexual Offences Act, 2003 which defined incestuous rape and also set a prison term of 12 years for the said offence. While the sentence imposed seems drastically low for such an offence, the existence of such a law is to be focused upon by the legislature. The Indian legislature had introduced the Incest and Sexual Abuse in Family (Offences) Bill, 2010 which if passed would deter any family member from touching and ruining the life of a minor. The proposed bill under Section 5 imposes the punishment of imprisonment for life if sexual intercourse is committed by one family member with the other without consent. If the same is done or tried to be done with a minor the bill recommends the death penalty which appears to be an apt penalty for a gruesome act of such nature.
To conclude, this paper suggests that the Incest and Sexual Abuse in Family (Offences) Bill, 2010 must be passed urgently as a separate piece of legislation or the crux of the legislation must be added as an amendment to the Indian Penal Coe, 1860. The need for such a legislation is furthered by showing the subjectivity in punishments given by courts to individuals committing the crime of incestuous rape. An overview of the prevailing situation in India indicates that the incidences of incestuous rape are rapidly increasing and therefore a serious introspection of the existing laws is required at this juncture for mitigating the sufferings of the victims by introducing separate and strict laws to deal with the issue with appropriate remedial measures.
5th year, Law Student,
Symbiosis Law School, Pune