In TukaRam v. State of Maharashtra
The Mathura rape case, however, brought about a change. It acted as an eye opener to the hitherto judicial trend of barbarism and despotism. The judiciary, realizing its follies, modified its tone and the nineties saw the emergence of an activist institution furthering the cause of women.
It defined ‘consent’ in clear and explicit terms, so as to rule out the possibility of passive submission be interpreted as consent. It played an important role in the realization of the need to sensitize the law as well as the attitude of the Judiciary towards such cases to avoid the victim of the crime from being victimized again by the Court and the loopholes in the law.
The case came for hearing on 1st June, 1974 in the session court. The judgment however turned out to be in favour of the accused. Mathura was accused of being a liar. It was stated that since she was habituated to sexual intercourse, her consent was voluntary; under the circumstances only sexual intercourse could be proved and not rape.
The Supreme Court held that Mathura had raised no alarm; and also that there were no visible marks of injury on her person thereby negating the struggle by her.
The Court in this case failed to comprehend that a helpless resignation in the face of inevitable compulsion or the passive giving in is no consent. However, the Criminal Law Amendment Act, 1983 has made a statutory provision in the face of Section.114 (A) of the Evidence Act, which states that if the victim girl says that she did no consent to the sexual intercourse, the Court shall presume that she did not consent.
In Vishaka Vs. State of Rajasthan and others sexual harassment was identified as a separate illegal behavior. The critical factor in sexual harassment is the unwelcomeness of the behaviour. Thereby making the impact of such actions on the recipient more relevant rather than intent of the perpetrator- which is to be considered.
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