But in a recent judgement the Delhi High Court acquitted an accused Achey Lal in the 2010 rape and murder of a 65-year-old woman, because it was not convinced of the proof and instead termed the intercourse as "forceful".
A report says, "The judgement, by Justice Pradeep Nandrajog and Justice Mukta Gupta has let off the accused, 49-year-old Achey Lal, who was convicted by the lower court to 10 years RI, on the grounds that even if the intercourse 'has been forceful, it was not forcible'.
The judgement, a full copy of which is available here, led to some outrage, because media reports, as the one published by a vernacular daily, say that the court assumed that the victim could not have been raped as she had crossed menopause. However, that is not what the judgment said.
The menopause bit has been mentioned in isolation in the judgment and has not been cited as the reason behind the court's ruling that the deceased was not raped. The judgement doesn't explicitly state that the accused is being let off because the court believes that a woman who has crossed menopause can't be raped.
The judgement reads, "As regards the offence punishable under Section 376 IPC the deceased was aged around 65-70 years, thus beyond the age of menopause. We find force in the contention of the learned counsel for the appellant that even if the sexual intercourse was forceful it was not forcible and contrary to the wishes and consent of the deceased." Note the judgement is not saying rape is not possible because she is past menopause.
As lawyer-activist Vrinda Grover told INNLIVE, "Menopause is a medical condition, and the mention of the word is extraneous and erroneous," and it is perhaps best to treat it as that. Another activist Jugmati Sangwan of the All India Democratic Women’s Association told the paper, "It is a very cryptic judgement, and the reference to the word ‘menopause’ is unfortunate, unnecessary and irrelevant."
The irrelevance of menopause aside, the judgement does spell out the reasons of the acquittal. It acknowledges that there is proof of forceful penetration. It also points out that the victim and the deceased had been drinking alcohol.
The judgement reads, "The forceful penetration is evident from the injuries on the vaginal orifices. However, besides the injuries on the vagina there is no other injury mark on the body of the deceased or on the appellant to show that there was any protest by the deceased."
While social media is outraging over the court's mention of the victim being past menopause, it should be noted that it is the bit about 'no-resistance' which is actually questionable. In fact, it does sound uncannily a bit like the argument extensively used against all rape victims. It's equivalent to saying, "She didn't protest since there are no visible injuries on other parts of the body. Therefore, she was not raped."
It is perhaps understandable why the judgement makes a distinction between sex that was forceful and not forcible. However, to conclude that the sex was not forced solely on the basis of absence of injury marks on the victim's body is way off the mark.
Based on the wording, here's what the judges are saying: the act might have been rough, but given the lack of evidence it was likely consensual and not forced.
While it would be wrong to assume that the judgement is wrong given that most of us are not privy to the facts of the case in detail, one has to say that it is rare and somewhat unusual.
Similarly, it has to be pointed out that the faulty reporting has kicked up a media storm that is obviously misdirected. The judgement needs to be re-read and understood in all it's complexity before everyone starts jumping to conclusions and overlook the real issues that need attention.
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