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#India – Incest narratives that haunt us #Vaw

This case challenges our notions about sexual morality prevailing in middle class homes. It also poignantly highlights the price a young girl has to pay if she dares to bring a case of incest into the public domain.

image by iranian artist activist Parastou Forouhar

image by iranian artist activist Parastou Forouhar

Background

Asmita is a tall, beautiful, confident teen studying in a reputed engineering college. But appearances are deceptive as they do not give even a hint of the pain, anxiety and trauma  which she has endured in her life.

Asmita’s mother, a Koli (fishing community) from Maharashtra eloped with her father, an electrical contractor hailing from Bihar, when she was barely 15. They met when her father started a business in her locality. Two daughters were born from this union, Asmita and her elder sister, who is now married with a child. Asmita father has an earlier wife who lives in Bihar.

Asmita grew up in a very disturbed home. Her father was extremely violent and abusive.  Her sister had confided in her that her father does obscene acts with her.  As she was growing up, her father began to touch her inappropriately – move his hands on her breasts and private parts, etc. When she resisted, he would tell her that he is spending so much on her education, but she was not paying anything back in return. He would abuse and beat her. Though she confided in her mother, they could not do anything as the father was very violent. They were also scared that it would bring disrepute to their entire family.

The Incident

On 6th May, 2013, when Asmita returned from college, her father showed her a pornographic video which had vulgar images of sexual acts. He then pinned her down and attempted to rape her. Asmita managed to escape from his clutches and ran to her motherin the kitchen. Her father was raging mad and so Asmita and her mother ran to her elder sister’s house in Navi Mumbai.

Two days later, the father arrived there and ordered her mother to return home. He abused Asmita and warned her never to enter his house again. Asmita felt helpless and alone. In extreme desperation, Asmita went to Wadala police station and narrated the entire history of sexual abuse by her father. Being a minor, a case of sexual assault (non-penetrative) under the Protection of Children from Sexual Offences (POCSO) Act, 2012 was registered by the police and her father was immediately arrested. Asmita then went back to her house.

Changed Dynamics in her Home

Initially Asmita’s mother and sister were supportive. However, things changed when a neighbour brought to their notice a news report about the incident. The article said that the journalists would soon be approaching them to get more details. Her mother and sister were worried about the stigma it would cause in the locality. So they persuaded Asmita to write a letter to the police that her father had not raped her and that the police should restrain the reporters from coming to her residence.

Asmita continued to live with her mother in their home and attend college. Her mother was facing huge financial insecurity as the father was the sole earning member of the family. Her father’s repeated bail applications were rejected by the sessions as well as the High Court, despite the fact that he produced an affidavit signed by Asmita where it was stated that she had filed a false complaint against him and she now wishes to withdraw the same.

The Trial

Since the case was filed under the POCSO Act it came up for trial within four months. On the first date the case was adjourned as the judge did not have time to record her evidence. On the next date, Asmita’s mother and the defense lawyer were engaged in a deep conversation outside the court room.  The investigating officer (IO) informed the public prosecutor (PP) that there is a likelihood that the girl may turn hostile due to family pressure.

Majlis’ support person met Asmita while she was waiting alone in judge’s steno’s room until the matter was called out. (Majlis has strived to ensure this space where the victim can be provided support, made to feel at ease and gain confidence prior to her deposition.)  Our young lawyer tried to strike a conversation. Asmita stated that she has come to the court to free her father. She seemed very stressed and sat with her eyes lowered, wringing her palms.

When Asmita was called into the witness box to depose, she told the Judge that she had gone to the police stationto complain against her father because he had scolded her for not doing his work and that the police had filed a false case of sexual assault. When the PP gave Asmita the  letter she had written to the police in her own handwriting,  she broke down and started sobbing.

The Judge cleared the court room. The defense lawyer and his team of juniors, all male, as well as the PP were sent out. The accused (father) was asked to sit in the adjacent room, so he could hear the proceedings, but Asmita could not see him while deposing.  Only the judge, the court staff and our support person were in the court room.

Our support person approached Asmita, and told her that she should speak freely without fear, as this was her only chance to tell the truth and the Judge will believe her and help her. After Asmita had calmed down, she admitted that the FIR was recorded correctly. Thereafter the prosecutor and the defense were called back and the trial continued. Asmita went on to narrate the incident as well as the previous sexual acts her father had committed including raping and abusing her sister. She also spoke of the physical violence by her father. The Judge realized that Asmita was under extreme tension and pressure and so she passed orders that Asmita be shifted to a government shelter home.

The mother was furious at the turn of events and abused Asmita in front of the judge. She came near Asmita and took away her gold chain, mobile phone and her purse. The judge was shocked by this behaviour and ordered police protection to Asmita from her family members.

Victim Support Programme

After Asmita was admitted in the shelter home, Majlis’ support person stayed in touch with her. We filed an application requesting that Asmita’s belongings such as her books and clothesbe handed over to her under police supervision and the same was done.

Asmita told us that the environment in the shelter home was not conducive for her studies. It was also embarrassing for her to go to college with police escort. Asmita made an application to the dean of her college requesting for hostel accommodation.

At the sametime her mother and sister informed the college that Asmita had eloped with her boyfriend and when her father chastised her she filed a false complaint against him. They requested the authorities not to entertain any of her requests. The college authorities were confused. Majlis’ support person along with the IO met the dean and convinced him about the seriousness of her situation and the genuineness of her request. They showed him the case papers. He immediately allotted her accommodation, waived her college fees, hostel fees and mess fees.  Asmita moved into the college hostel with great relief. All this was done before the next court date when her cross examination was scheduled.

Her mother and relatives came to the college and abused Asmita causing her great humiliation. We helped her to file a police complaint and also brought this fact to the notice of the judge. An order was passed that the mother should not enter the college premises.

Cross Examination and Inconsistencies

The defense produced the affidavit where Asmita had admitted that she had filed a false case. The judge discarded it, as Asmita had admitted to the document and had deposed that it was written under pressure from her mother and relatives. A case of false complaint could not stand.

The defense then tried to prove thatshe had filed the case when the father objected to her affair. They produced love messages sent by a boy to her mobile. But since Asmita’s mobile was snatched from her by her mother in court itself, a case of love affair could not stand. As expected, Asmita’s mother and sister, important witnesses to the prosecution, supported the defense and stated that Asmita had filed a false complaint against her father.

The emotional and economic bonds which tie the patriarchal family are so strong indeed, that they do not get loosened even in the face of extreme violence and sexual abuse. On the contrary, they form a formidable wall against any member who dares to challenge the conventional norms.

The Verdict

The judge observed that throughout her evidence Asmita was very tense and nervous but had deposed truthfully and had convincingly explained all inconsistencies. The defence on the other hand could not build a credible defense and their story kept changing. They could not explain why a girl would run to the police station to file a case of sexual assault if her father had scolded her and what motive would the police have to file a false case against the accused.

Asmita’s case was registered under POCSO Act and hence the trial was conducted in the special court at sessions and she could avail of Majlis’ victim support programme (cases of adult molestation are heard in magistrate’s court without any protective provisions). But later there was a discrepancy regarding Asmita’s age on the date of the incident – relying on the school certificate, the police had recorded her age as 17 years and 9 months. Her mother produced a birth certificate from Bihar according to which she was a major on the date of the incident, as her age was 18 years and 2 months. The prosecution could not prove that this was a concocted document.

The court gave the benefit of doubt to the accused and so the charge under the POCSO Act could not be sustained.  In the end, Asmita’s father was convicted for two years under S.354 IPC for molesting his adult daughter. The judge ordered Rs. 25,000/- compensation to be paid to her, a pittance compared to what the father had spent to defend his case. Asmita was very disappointed with the two year conviction. It is sad that the judge did not treat it as an aggravated situation of a father abusing his daughter over a prolonged period.

The accused filed an appeal against his conviction which was admitted by the High Court, which stayed the order of the sessions court and granted him bail. The High Court did not prevail upon the accused to pay the victim (his own daughter) the Rs.25,000/- compensation as a precondition for admitting the appeal. The case will now languish in the High Court and the father may not even serve the two years of sentence. So much for justice – even in a proven case of incest.

Case Details

Citation and Survivor name concealed to protect the identity of the victim

Police Station:  Wadala

Date of FIR:  8th May, 2013

Date of Judgment:  29th October, 2014

Timeframe:  6 months

Sessions Court:  Fort

Sessions Case No. 458 of 2013

Judge:  S.D. Tulankar

Public Prosecutor: Ms. R.S. Kanojia

Defense Lawyer: Mr. A.M. Saraogi

Verdict:  Acquittal under POCSO, Conviction under S.354, IPC

Other Comments

History of Abuse: Though this is not part of the legal document, we feel it is important to highlight the extent of vulnerability young girls face in their own homes, since most often this history is hidden from public view.

When Asmita was barely six, she had witnessed her father raping her sister who was barely twelve at that time. Her sister was crying out in pain and her father was thrashing her.  When Asmita started howling he threw her out of the house. It was late at night and very dark outside. Asmita was scared. Her mother came to her rescue and asked to hide herself in the kitchen. Thereafter, he  regularly raped her sister.

When the sister was in 12th Std. she fell in love with a boy in the neighbourhood.  Her father found out and was furious. He took her to his village and married her off to a 30 year old widower.  But he didn’t let the marriage be consummated.  He brought her back to Mumbai, on the pretext that she needs to complete her studies and continued to rape her. Asmita thinks that her sister has undergone several abortions due to this as she used to continuously ill and was taken to the hospital.  During her diploma course in engineering, Asmita’s sister fell in love with a boy from her college and eloped with him.

When Asmita was in VIII Std once when her mother and sister had gone to their village, her father attempted to rape her, but she kicked her in the groin with her knee. In anger he burnt all her school books. There were other occasions that he tried to rape her. Her mother tried to protect her and argue with her father that he has already spoilt the elder daughter and that she should leave Asmita alone.  But every time she protested the father would beat her.

Even at the worst moments Asmita’s concern continued to be for her mother.  She was worried what would happen to her mother, if her father was sentenced for a very long period. The irony is that the mother’s situation is so precarious that she is devoid of any rights as a wife, since she is the second wife.

Role of Support Person post the trial: Since the entire family had turned against Asmita, we were her only support. She kept in touch and contacted us whenever she faced any difficulty. Now that her trial is over the tension has eased a bit. She is on talking terms with her mother, however she is not allowed to enter the home and is provided no  financial support.  So 19 year old Asmita has to fend for herself, as she had to meet some of her basic needs such as toiletries, or food when the hostel mess was closed etc. and we help her to tide over these. The most commendable thing about Asmita is that throughout this ordeal, she has managed to ensure that her grades in college are not affected.  Asmita wants to get a degree in engineering post her diploma and we will make every effort to ensure she can.

Conclusion   

Cases of father raping daughter usually end in acquittal, because the victim cannot withstand the family pressure and she is forced to turn hostile in court. From Asmita’s case we realize how young girls are forced to accept allegations of bad moral character, in order to save their father from conviction. We have come across several such cases. These cases are then termed as “false cases” in official and public discourse.  Is it any wonder that young girls do not lodge complaints against their fathers when they are sexually abused?

The question that haunts us at the end of this socio-legal narrative is – what have we achieved through our campaigns for law reform spanning over three and half decades, if a viable, long term victim support programme is still a far cry. Until such time, fathers who rape their daughters will go scotfree, even in the rare instances, when a teenaged daughter dares to defy norms and lodge a complaint.

*RAHAT is Majlis Legal Centres’ project in Mumbai to offer socio-legal support to survivors of sexual violence.

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