The Curious Case of Section 376

Anmol Vashisht, 4th Year of BA LLB (H) at University School of Law and Legal Studies

A six-month long survey conducted by leading newspaper The Hindu has brought to light startling conclusions about the cases of rape recently brought before the Delhi courts. The figures represent the stark reality: rape laws have recently been misused in Delhi.


The Hindu conducted an analysis of cases of sexual assault decided in Delhi’s six district course with a view to discern a theme among them. Nearly 600 cases have been brought before the Trial Courts in 2013. The Hindu analyzed them and categorized them according to various factors (outcome, victim’s nearness to the accused, age of the victim, judge’s observation, etc.) The newspaper also conducted interviews of a motley crew of judges, public prosecutors, police officers, lawyers, women’s right activists, complainants and accused.  The investigation, published in three parts (available here, here and here) lasted six months and brought to light a nuanced picture of sexual assault in the capital.


The Hindu’s analysis revealed that of the 583 cases decided in the Trial Courts (where the case first comes for trial), the largest percentage were of cases of elopement, followed by instances of non-appearance of complainant, rapes by neighbours and acquaintances, breach of promises of marriage, sexual assaults by close relatives and strangers.




The survey reveals that 583 cases were decided by the six District Courts of Delhi in 2013. Of the number of cases instituted, nearly 30% involved elopement of the boy and girl, followed commonly by a complaint of abduction and rape by the girl’s family. In nearly two-thirds of the 174 cases of elopement, the woman insisted in her deposition before the police, doctors and magistrates that she was in love with the accused and, in most cases, even got married. They also complained that they had been subjected to repeated beatings and threats by parents who even, at times, forced her to undergo abortion. Not surprisingly, a large portion of these cases involved inter-caste and inter-religious couples. It was further observed in 67 of 174 cases of alleged elopement that the girl, though first admitting (either in the FIR, medical examination or to the magistrate) that she eloped of her own volition, subsequently turned against the accused. Noted lawyer and activist Seema Mishra attributes the recantation to systematic brainwashing by the girl’s family. Further, in 10 of the cases of alleged elopement, the intercourse though consensual, resulted in ‘rape’ since the girl was found to be a minor.


Next were the instances of ‘sexual assault’ where the complaint turned out to be false. In 123 of the 583 cases, the accused was acquitted since either the complainant went missing, stopped attending the proceeding or went hostile. Many even alleged that they had filed the case on a false complaint only to extract money or for property.  In two cases, the complainant claimed in her deposition that she retracted on account of intervention by ‘community members’.


The next chunk comprised cases of rape involving an alleged breach of promise of marriage by the accused. In the 109 cases registered, it is alleged that while the accused initially agreed to marry the complainant, he subsequently refused to put his promise into effect. The complainant alleges rape on account of her consent being vitiated by a false promise of marriage. Only 12 of such complainants resulted in conviction. These were instances where the accused was either already married or had conducted a fraudulent marriage ceremony with the complainant.


While in 111 of the 583 instituted cases, the complainant alleged rape by the neighbour or an acquaintance of the complainant, in 30 cases, rape by a member of the family was complained. There were 12 instances of rape by strangers and 9 that involved trafficking and prostitution. The Hindu found that among those involving neighbours, nearly half could be characterized by a man in a slum sexually assaulting his neighbour’s minor daughter by luring or forcibly taking her to his house. Among rapes committed by immediate family members, it was discovered that in almost all cases it was a young child who was subjected to the crime. In rapes by strangers, the accused looked for the opportune moment to prey on vulnerable women who were either homeless, had run away from their home or was a child. The rapes belonging to this category are the ones commonly understood by everyone.

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The numbers scarcely reveal the agony of the rape victim. When considered closely, the numbers reveal the true picture of rape in the National Capital. Let us attempt to look behind the numbers to understand better what they mean.


The fact that nearly 30% of ‘rape’ cases involve complaint by the girl’s family after the boy and girl elope together is symptomatic of a larger malaise creeping deep within the society. The issue may be considered to be twofold: One, of lack of freedom to choose one’s spouse and two, of the fear among couples to be persecuted for their choices. Statistics reveal that, despite belonging to an urban modern milieu, parents in Delhi seek special interest in marriage of their children. Such an interest often takes the form of imposition of their choices on the to-be bride/groom. An individual choice of their child to select their partner is seen as an audacious act of effrontery by their parents. The fear of repercussion drives the young couple to run-away from their family. It is even more surprising that the city that boasts modern infrastructure is dwelled by those who believe in the taboo of inter-caste and inter-religious marriages.  The Hindu claims that a vast majority of such cases were marked by a savage attitude of the girls’ parents who often resorted to brutal violence against the couples. For the vengeful, section 376 thus becomes a tool to settle scores with the boy.


Rape laws are also often seen to be misused by those who aspire to only defame the accused. The complainant has an axe to grind with the man. She files a complaint against him, ensures he gets harassed by the police and is condemned by the society. Instead of complying with the due procedure of law, she feels satisfied in the apparent pre-trial defamation of the man. In 123 cases, The Hindu reports, the complainant often went missing or claimed she never alleged rape. While it’s truly believable that her family has a major role to play in forcing her to retract, it would be unwise to assume that rape laws aren’t being misused to seek revenge. In May, 2013 Justice Kailash Kambhir of the Delhi High Court noted that rape laws are also being used as “a weapon for vengeance and vendetta”. He clarified that judges must “cautiously examine the intentions of the girl to find out whether the rape complaint is genuine or has mala fide motives”


The other issue often seen in instances of rape is of the alleged breach of a promise of marriage. The prosecution claims that the accused, by promising to marry the girl, indulges in intercourse with her; her consent thus being obtained on a promise. The consent gets vitiated as soon as the man fails to fulfil his promise leading consequently to the offence of rape. The issue must be understood by distinguishing between instances of breach of promise and non-fulfillment of promise. In the former, the accused possesses a sly motive and makes a false promise of marriage to the naive girl only to indulge in intercourse. The intention of the accused is never to marry her but to make a false gesture to obtain her consent covertly. The latter cases involve the accused, though initially believing to fulfill his promise of marriage, unable to do so afterwards for unforeseen reasons. While in the former case the accused deserves to be severely punished, the latter deserves to be treated differently. In Deepak Gulati v. State of Haryana (Criminal Appeal No. 2322 of 2010), the Supreme Court Bench recently noted that to convict a man of rape “there must be adequate evidence to show that at the relevant time, i.e., at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim.” “The court must be assured of the fact that from the very beginning, the accused had never really intended to marry her”, Justice B.S Chauhan, while delivering the judgement, added. What could perhaps, in addition to the intention of the accused, also be considered is the mental constitution of the complainant. It would be difficult to believe the narrative of an educated woman who possibly was well aware of her act and indulged in sexual intercourse by reason of her love and not solely on the misrepresentation made by the accused.


The cases of rape by close relatives, acquaintances and neighbours reveal a sordid reality: those in a fiduciary relationship are exploiting the trust entrusted in them. The National Crime Record Bureau (NCRB) further notes that of 33,707 instances of rape registered in 2013 in India, 31,807 cases involved rape by someone known to the victim. Instances of incestual rapes too are on a rise with 536 recorded cases. The report by NCRB, titled “Crime in India 2013” further highlights that in 33.9% of cases the accused was a neighbour. Imagine the agony of a young girl subjected to sexual exploitation by someone who she fondly called ‘uncle’ and in few cases even ‘brother’ or ‘father’. How would she feel in having to share the same hearth with her assailant? Instances are not rare where the victim is subjugated and enslaved for months. It is this category of crimes that deserve the harshest of punishments.

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By misusing laws that are aimed at ensuring protection of women, the wrongdoers are committing a huge disservice to the cause of women. The Indian judiciary is already reeling under a colossal amount of pending cases. Filing baseless cases not only ensures that the real perpetrator of crime goes scot-free but also creates prejudice among judges against genuine victims. If the poor conviction rate of 24% for rape in India is anything to go by, misuse of rape laws would act as the final nail in the coffin of women justice.

The End