SH. BODHISATTWA GAUTAMversusMISS SUBHRA CHAKRABORTY

                  SH. BODHISATTWA GAUTAM                                     A
                              v.
                  MISS SUBHRA CHAKRABORTY

                         DECEMBER 15, 1995

          [KULDIP SINGH AND S. SAGHIR AHMED, JJ.]                            B

      Constitution of India, 1950:

      Article Jr!urisdiction-Victim need not personally approach the
Cowt-Can be exercised suo motlt or on the basis of public interest litiga-   C
tion-Fzmdamental rights can be enforced even against private bodies and
individuals.

      Criminal Law :

      Indian Penal Code 1860: Section 376.                                   D
      Rape--Corroboration of the prosei:utrix not always necessary--Co1n-
pensation to rape victims-Court has jurisdiction to award interim compen-
sation during pendency of Criminal Case.

       The respondent lodged a complaint against the petitioner under E
Sections 312/420/493/496/498-A, Indian Penal Code, 1860. The facts set out
in the complaint indicated that there was initially a period of romance
during which the petitioner used to visit the house of the respondent and
on one occasion, he told her that he was in love with her and' ultimately
succeeded, on the basis of his assurance to marry her, in developing sexual F
relationship with her with the tragic result that she became pregnant.
While in that state, she persuaded the petitioner to marry her, but he,
deferred the proposal on the plea that he had to take his parents' permis-
sion. He however, agreed to marry her secretly. Consequently, the
petitioner took her before the God he worshiped and put Vermilion on her
forehead and accepted .her as his lawfnl wife. In spite of the secret mar- G
riage, he, through his insistence, succeeded in motivating her for an
abortion which took place in a clinic. The respondent became pregnant
second time and at the instance of the petitioner she had to abort again
in a Nursing Home where the petitioner signed the consent paper by
deliberately mentioning a false name.                                       H
                                    731
    732                   SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A          The petitioner tiled a petition in the High Court under Section 482
    of the Code of Criminal Procedure for quashing the complaint which w.s
    dismissed. The petitioner tiled a Special Leave Petition in this Court. This
    Court while dismissing the SLP further took suo motu notice to the facts
    of this case as narrated in the complaint and issued notice to the petitioner
    as to why he should not be asked to pay reasonable maintenance per month
B   to the respondent during the pendency of the prosecution proceedings
    against him.

          The petitioner deniecl the allegations made against him in the com-
    plaint and stated that his service having been terminated the question of
C   burdening him with the liability of paying maintenance to the respondent
    did not arise.

          In the circumstances the question before this Court was whether any
    further order could be passed compelling the petitioner to pay main-
    tenance to the respondent during the pendency of the Criminal Case
D   against him.

          Disposing of the petition, this Court

          HELD : 1.1. This Court, as the highest Court of the country, has a
E   variety of jurisdiction. Under Article 32 of the Constitution, it has the
    jurisdiction to enforce the Fundamental Rights guaranteed by the Constitu-
    tion by issuing writs in the nature of Habeas Corpus, Mandamus, Prohibi-
    tion, Quo-Warranto and Certiorari. Fundamental Rights can be enforced
    even against private bodies and Individuals. Even the right to approach the
    Supreme Court for the enforcement of the Fundamental Rights under
F   Article 32 itself is a Fundamental Right. The jurisdiction enjoyed by this
    Court under Article 32 is very wide as this Court, while considering a
    petition for the enforcement of any of the Fundamental Rights guaranteed
    in Part III of the Constitution, can declare an Act to be ultra vires or beyond
    the competence of the legislature and has also the power to award compen-
G   sation for the violation of the Fundamental Rights. [741-D-E]

          Rudul Sah v. State of Bihar, AIR (1983) SC 1086 and Peoples' Union
    for Democratic Right (through its Secretary & Anr. v. Police Commissione1;
    Delhi Police HQs. & Anr., [1989] 4 SCC 730, referred to.

H         1.2. The right of the victim for compensation is recognised by provid-
              BODHISATTWAv. SUBHRACHAKRABORTY                             733

ing that it shall be awarded by the Court on conviction of the offender          A
subject to the finalisation of Scheme by the Central Government. If the
Court trying an offence of rape has jurisdiction to award the compensation
at the final stage, there is no reason to deny to the Court the right to award
interim compensation which ·should also be provided in the Scheme. The
jurisdiction to pay interim compensation shall be treated to be part of the      B
over all jurisdiction of the Courts trying the offences of rape which is an
offence against basic human rights as also the Fundamental Right of
Personal Liberty and Life. [746-H, 747-A-B]

      1.3. For the exercise of this jurisdiction, it is not necessary that the
person who is the victim of violation of his fundamental right should            C
personally approach the Court as the Court can itself take cognizance of
the matter and proceed suo motu or on a petition of any public spitited
individual. This Court through its various decisions, has already given new
dimensions, meaning and purpose to many of the fundamental rights
especially the Right to Freedom and Liberty and Right to Life. The
Directive Principles of the State Policy, have also been raised by this Court    D
from their static and unenforceable concept to a level as high as that of
the fundamental rights. [741-G-H]

     2. 'Right to Life' does not merely mean animal existence but means
something more, namely, the right to live with hnman dignity. Right to Life      E
would, therefore, include all thos_e aspects of life which go to make a life
meaningful, complete and worth-living. [742-B]

      Francis Coralie Mullin v. The Administrator, Union Territory of Delhi
& Ors., AIR (1981) SC 7461; State of Maharashtra v. Chandrabhan, AIR
(1983) SC 803; Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors.,        F
AIR (1986) SC 180 and Delhi Transport Corporation v. D.T.C. Mazdoor
Congress & Ors., AIR (1991) SC 101, referred to.

      3.1. According to common-law rape doctrines one of the require-
ments was to inform the jury during trial that rape charges were easy to
bring but difficult to defend. Consequently, in a tide of law reforms, this      G
requirement was removed. The rule of corroboration which was such
stricter in a trial for the offence of rape than for other offences was also
largely removed from law. In .India also the rule "f 'Corroboration of the
Prosecutrix" has undergone a change through st~tutory amendments as
also through decisions of this Court. (743-B-C)                                  H
    734                    SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A         State of Himachal Pradesh v. Raghubir Singh, [1993] 2 SCC 622; State
    of Kamataka v. Mahabaleshwar Gourya Naik, AIR (1992) SC 2043 and
    Historia Placitomm Coronae by Sir Mathew Hale, referred to.

          3.2. In spite of the decision of this Court that (depending upon the
    circumstances of the case) corroboration of the prosecutrix was not neces·
B   sary, the cases continued to end in acquittal on account of mishandling of
    the crime by the police and the invocation of the theory of 'consent' by the
    Courts who tried the offence. To overcome this difficulty, the legislature
    intervened and introduced Section 114-A in the Evidence Act, 1872.
                                                                [743-H, 744-A]
c         Delhi Domestic Working Women's Fomm v. Union of India, (1995] 1
    sec 14, referred to.
          4. Apart from the above, this Court has the inherent jnrisdiction to
    pass any order it corsiders fit and proper in the interest of justice or to
D   do complete justice between the parties. The petitioner shall pay to the
    respon1ent a sum of Rs. 1,000 every month as interim compensation
    during the pendency of the Criminal Case. [747-D]

          CRIMINAL APPELLATE JURISDICTION : Special Leave Peti·
    tion (Crl.) No. 2675 of 1995.
E
         From the Judgment and Order dated 12.5.95 of the Gauhati High
    Court in Crl. R.No. 2(K) of 1995.

          Avijit Bhaltacharjee for the Petitioner.

F         The Judgment of the Court was delivered by

          S. SAGHIR AHMAD, J. Subhra Chakraborty (alias - Kalpaoa) who
    was student of the Baptist College, Kohima where the opposite party, Shri
    Bodhisattwa Gautam was a lecturer, filed a complaint in the Court of the
G   Judicial Magistrate, !st Class, Kohima, Nagaland, alleging, inter alia, as
    under:-

            "3. That, your complainaot begs to state that in April 1989 the
            accused person entered into Baptist College, Kol1ima as a Lecturer
            thereof and the complainant was a student of the said College at
H           that relevant period.
BODHISATIWAv. SUBHRA CHAKRABORTY [S. SAGHIRAHMAD, J.]            735

  4. That, the accused person was in said Service in Kohima from A
  April 1989 till he resigned the Service on 27th Jan, 1995 and was
  residing in a rented house in Kenezou Valley, Kohima owned by
  Dr. Zakiebatsu Angam.

  5. That, on 6th Feb. 1995 the accused person left for Silchar and
  presently residing in his uncle's (Shri Amiya Kanta Cha~raborty)      B
  house in Premtala, Silchar-4, Dist. Cachar, in the State of Assam
  and assumed his service as Lecturer in Cachar College (Commerce
  Dept.) Silchar - 4 (Assam).

  6. That, on the 10th June, 1989 for the 1st time the accused visited C
  the complainant's residence in Kohima and thereafter often he
  used to visit complainant's residence, as a teacher he was respected
  by the complainant as well as all the members including her
  parents. In course of such visits once in the month of Nov. 1989
  the accused voluntarily told your complainant that he was already
  in her love. Thus there developed a love affair between themselves D
  since 1989.

  7. That, the complainant most humbly states further that with
  malafide intention to practise deception on the complainant, the
  accused gave false assurance of marriage to the innocent com-         E
  plainant and thereby the accused dishonestly procured sexual
  intercourse with the complainant. The accused often use to induce
  the complainant to have biological contact with him, but whenever
  he was approached by the complainant to complete the marriage
  ceremony, the accused very tactfully used to defer the marriage
  sometimes saying that he was waiting for his parents formal consent   F
  and sometimes saying to cooperate him till he got a Govt. Service.

  8. That, in course of continuation of the affairs between the
  complainant and the accused, the complainant got pregnant twice,
  once in the month of September, 1993 and secondly on in the           G
  month of April 1994 out of her co-habitation with the accused
  person.

  9. That, the complainant being worried about her said pregnancy
  created pressure upon the accused to marry her immediately and
  to save her from being ruined, but the accused on the plea of his H
    736               SUPREME COURT REPORTS (1995] SUPP. 6 S.<;:.R.

A         parents permission went on deffering the marriage, as a result
          there was a quarrel in between the complainant and the a·ccused,
          where after the accused lastly opined for secret marriage to avoid
          social gathering as he was waiting for his parents permission. The
          complainant being pregnant was placed in a very awkward position,
          as such, agreed to said secret marriage, accordingly the accused
B         on the 20th September, 1993, married the complainant in front of
          the God he Worships in his residence in Kenozou Valley, Kohima
          by putting Vermilion (sindur) on the complainant's forehead and
          accepted the complainant as his lawful wife and thus the com-
          plainant was consorted and consoled. But the complainant faced
c         further corporal punishment, as the accused kept on insisting the
          complainant to be refrained from giving birth to the baby and was
          pressurising her to undergo operation/abortion despite her refusal
          for the same. The accused with fraudulent intention to deceive the
          complainant proposed the said abortion on the plea that birth of
          the baby would be a barrier to convince his parents to accept the
D
          complainant as their daughter-in-law and such event would lead
          the complainant to a path of unhappiness. The complainant being
          an innocent lady failed to understand the accused's wicked and
          mischievous plan whereby the accused succeeded and dishonestly
          motivated the complainant for abortion and compelled the com-
E         plainant to undergo operation in the Putonou Clinic, Kohima and
          aborted in October '93.

          10. That, the said Ceremony of giving Sindur (Vermilion) on the
          complainant's forehead by the accused in front of the God made
F         the complainant to believe that she was lawfully married wife of
          the accused and with such believe she in good faith completely
          submitted herself to the accused as an ideal wife and never dis-
          believed the accused. The complainant even did not have any doubt
          as to why the accused insisted her to keep their marriage secret.
          The complainant was forced to undergo abortion even second time
G         in the month of April '94 in the CAREWELL NURSING HOME
          at Dimapur with the pretext that if the complainant gave birth to
          any child before the accused could convince his parents she would
          never be accepted by Bodhisatta's parents and relatives further
          their marriage being a secret one, the developed stage of the
H         complainant would hamper the dignity of her own parents and
BODHISATIWAv. SUBHRACHAKRABORTY [S.SAGHIRAHMAD, J.]             737


  other paternal relations irreparably and thus taking the privilege A
  of complainant innocency the accused has exploited the com-
  plainant in a very pre-planned way. The accused is so wicked that
  he even furnished a false name in the said Nursing Home and
  signed the consent Register/Paper as BIKASH GAUTAM con-
  cealing his real name BODHISATTA GAUTAM which fact was B
  unknown to the innocent complainant until! recently and came to
  know only in the 2nd week of Frebruary, 1995 when the com-
  plainant went to obtain a certified copy of the abortion consent
  paper of the accused.

     A copy of said consent paper signed by the accused is annexed    C
  hereto and marked as Annexure-1.

  11. That, odieving herself to be the lawful wife of the accused, the
  complainant like a dumb shouldered up all those hardship since
  1989. On hearing the message that the accused would go to Silchar, D
  the complainant on 4th Feb. '95 went down to Dimapur and visited
  the accused to take the complainant permanently with the accused
  to Silchar as he was going to Silchar to join as a Lecturer in a
  Government College named CACHAR COLLEGE which both of
  them actually waited for. But the wicked accused forgetting the
  consequences of his all fraudulent activities in total disregards of E
  their marriage and their relationship refused to accept the com-
  plainant as his wife and abandoned the complainant asking her to
  forget all her dream. Be it furhter submitted that the accused's
  friends namely (1) Shri Subrata Datta, (2) Shri Ranadhir Deb (3)
  Shri Prasanta Dey and ( 4) Shri Pradeep Paul of Dimapur tried a F
  lot to convince the accused and not to abandon the complainant
  in such a cruel manner, as he had already married the complainant
  and co-habited years together, but all efforts ended in futility as
  the accused in reply said that the giving ·of vermilion on
  complainant's forehead was pretext of marriage to over come the
  past situations and not at all a complete marriage and the accused G
  repeatedly said that he had no option, but to abandon the com-
  plainant as his parents are not agreeable to accept the complainant
  as their daughter-in-law.

  12. That, the accused not only induced the complainant and co- H
    738                  SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A           habited with her, giving her a false assurance of marriage but also
            fraudulently gave through certain marriage ceremony with
            knowledge that was not a valid marriage and thereby dishonestly
            made the complaint to believe that she was a lawfully married wife
            of the accused. The accused even committed the offence of mis-
            carriage by compelling the complainant to undergo abortion twice
B           against her free will. The way the accused exploited the com-
            plainant and abandoned her is nothing but an act of grave cruelty
            as the same has caused serious injury and danger to the
            complainant's health both mentally and physically, as such, the
            accused above named has committed Criminal offences punishable
c           UIS 312/420/493/496/498-A of Indian Penal Code."

          This complaint was registered as Criminal Case No. 1/95 under
    Sections 312/420/493/496/498-A, Indian Penal Code and Bodhisattwa
    Gautam was summoned but he, in the meantime, filed a petition in the
D   Gauhati High Court under Section 482 of the Code of Crimi~ai P~;;~edur~ ·
    for quashing of the complaint and the proceedings initiated on its basis, on
    the ground that the allegations, taken at their face-value, do not make out
    any case against him. But the High Court by its judgment and order dated
    May 12, 1995, dismissed the petition compelling Bodhisattwa Gautam to
    approach this Court by way of Special Leave Petition. Special Leave
E   Petition (Criminal) No. 2675/95 was filed and was dismissed by us by our
    order dated October 20, 1995, in which we stated as under :-

                "We see no ground to interfere with the impugned judgment
            of the High Court. We dismiss the special leave petition. Having
            done so, we further take suo motu notice to the facts of this case
F
            as narrated in the complainant which has been read before us. We
            issue notice to the petitioner as to why he should not be asked to
            pay reasonable maintenance per month to the respondent during
            the pendency of the prosecution proceedings against him. Mr. A.
            Bhattacharjee accepts notice.
G
                List it on 1.12.1995.

                Petitioner in person be present in Court on the next date of
            hearing. Notice be also sent to the respondent along with the copy
H           of this order."
     BODHISATIWAv. SUBHRA CHAKRABORTY (S. SAGHIRAHMAD, J.]             739

      Pursuant to the above order, Shri Bodhisattwa Gautam put in ap- A
pearance and filed an affidavit in reply in which he denied the allegation
made against him in the complaint and stated that the complaint was filed
only to harass and humiliate him and, therefore, there was no occasion to
direct him to pay any amount as maintenance to the respondent. He also
indicated that although he had taken up service in another College, namely, B
Cachar College, his services had since been terminated. Para 4 of his
affidavit in which these facts have been stated is reproduced below :-

        "4. That I say that I am not in any employment now and I am an
        unemployed person after my services as a Lecturer in Cachar
        College, Silchar, has been terminated with effect from 16.7.1995      C
        by a resolution of the Governing Body of the said College passed
        in a meeting held on 14.9.1995. A true copy of the proceedings of
        the '~id meeting of the Governing Body of Cachar College, Silchar
        held on 14.9.1995 is annexed hereto as Anne.xure -Al.

          The relevant resolution No.5(A) of the said meeting of the D
        Governing Body reads as follow :-

             "Resolution No. 5(A) :-

               The Principal placed the leave petitions of Shri B. Gautam,
             Lecturer, Deptt. of Commerce, adding thai Shri Gautam            E
             resumed his duties in the College on the re-opening day of
             the College after summer vacation, i.e., on 15th of July, 1995
             and at first he sought leave for twenty one days and the for
             three years at a stretch.

               The Principal also stated that Shri B. Gautam was ap-          F
             pointed against a lien vacancy for one year vice Dr. A.
             Mazumdar, the one-year lien having expired on 9.9.1995.

                The matter was thoroughly discussed and it was unani-
             mously resolved that since Shri B. Gautam's term of appoint-     G
             ment against lien vacancy had expired on 9.9.1995 and_his
             service was not confirmed, (he did not complete even one full
             year's service), he cannot be granted three years' leave at a
             stretch as prayed for by him.

               Also resolved that as Shri B. Gautam has been absent from H
    740                  SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A                the College from 16th of July, 1995 and also the term of his
                 appointment expired on 9.9.1995, Shri Gautam's service as
                 lecturer in the Deptt. of Commerce in Cachar College, Sil-
                 char be treated as having been terminated w.e.f. 16th July,
                 1995.

B                  The Principal be requested to forward the above resolution
                 to the D .P.I. Assam, for his kind approval of the termination
                 of the services of Sri B. Gautam w.e.f. 16.7.1995."

               This resolution along with other resolutions passed in the said
c           meeting held on 14.9.1995 were placed before the meeting of the
            Governing Body held subsequently on 11.11.1995 for confirmation.
            A true copy of the notice of meeting to be held on 11.11.1995
            containing the agenda of the meeting is annexed hereto as An-
            nexure -A2.

D               Now I have been reliably informed that in the meeting of the
            Governing Body on 11.11.1995, the aforesaid resolution terminat-
            ing my service has been confirmed. I further state that I have not
            received any payment towards my salary since July, 1995 and after
            the termination of my service with effect from 16.7.1995 no ques-
            tion of my receiving any salary arises.
E
               In the circumstances I respectfully submit that no question of
            burdening me with the liability of paying maintenance to the
            respondent can arise."

F          The facts set out in the complaint lodged against Bodhisattwa
    Gautam indicate that there was initially a period of romance during which
    Bodhisattwa Gautam used to visit the house of Subhra Chakraborty and on
    one occasion, he told her that he was in love with her and ultimately
    succeeded, on the basis of his assurances to marry her, in developing sexual
    relationship with her with the tragic result that Subhra Chakraborty became
G   pregnant. While in that state, she persuaded Gautam to marry her, but he,
    deferred the proposal on the plea that he had to take his parents' permis-
    sion. He, however, agreed to marry her secretly. Consequently, on 20th
    September, 1993, Bodhisattwa Gautam took her before the God he wor-
    shiped and put Vermilion on her forehead and accepted her as his lawful
H   wife. In spite of the secret marriage, he, through his insistence, succeeded
     BODHISATIWAv. SUBHRACHAKRABOR1Y [S.SAGHIRAHMAD,J.)                 741

in motivating her for an abortion which took place in a clinic at Kohima in A
October, 1993. Subhra Chakraborty became pregnant second time and at
the instance of Bodhisattwa Gautam she had to abort again in April, 1994
in the Carewell Nursing Home at Dimapur where Gautam signed the
consent paper and deliberately mentioned himself as Bikash Gautam.

      The Gauhati High Conrt, as already pointed out above, refused to B
quash the proceedings in Criminal Case No. 1/95 pending in the Court of
the Judicial Magistrate, !st Class, Kohima and this Court has upheld the
judgment of the Gauhati High Court. The question is whether any further
order can be passed in the case and Gautam can be compelled to pay
maintenance to Subhra Chakraborty during the pendency of the Criminal C
Case for which Show Cause Notice has been issued to him?

        This Court, as the highest Court of the country, has a variety of
jurisdiction. Under Article 32 of the Constitution, it has the jurisdiction to
enforce the Fundamental Rights guaranteed by the Constitution by issuing D
writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-War-
ranto and Certiorari. Fundamental Rights can be enforced even against
private bodies and individuals. Even the right to approach the Supreme
Court for the enforcement of the Fundamental Rights under· Article 32
itself is a Fundamental Right. The jurisdiction enjoyed by this Court under
Article 32 is very wide as this Court, while considering a petition for the E
enforcement of any of the Fundamental Rights guaranteed in Part III of
the Constitution, can declare an Act to be ultra vires or beyond the
competence of the legislature and has also the power to award compensa-
tion for the violation of the Fundamental Rights. See : Rudul Sah v. State
of Bihar, AIR (1983) SC 1086 and Peoples' Union for Democratic Rights F
(through its Secretary & Anr.) v. Police Commissioner, Delhi Police HQs. &
Anr., [1989) 4 SCC 730.

      For the exercise of this jurisdiction, it is not necessary that the person
who is the victim of violation of his fundamental right should personally
approach the Court as the Court can itself take cognizance of the matter G
and proceed suo motu or on a petition of any public spirited individual.
This Court through its various decisions, has already given new dimensions,
meaning and purpose to many of the fundamental rights especially the
Right to Freedom and Liberty and Right to Life. The Directive Principles
of the State Policy,. have also been raised by this Court from their static H
    742                   SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.

A   and unenforceable concept to a level as high as that of the fundamental
    rights.

        This Court has, innumerable times, declared that "Right to Life" docs
  not merely mean animal existence but means something more, namely, the
  right to live with human dignity. (See : Francis Coralie Mullin v. The
B Administrator, Union Territory of Delhi & Ors., AIR (1981) SC 746; State of
  Maharashtra v. Chandrabhan, AIR (1983) SC 803; Olga Tellis & Ors. v.
  Bombay Municipal Corporation & Ors., AIR (1986) SC 180 and Delhi
  Transport Corporation v. D. T.C. Mazdoor Congress & Ors., AIR (1991) SC
  101.) Right to Life would, therefore, include all those aspects of life which
C to make a life meaningful, complete and worth-living.

          Unfortunately, a woman, in our country, belongs to a class or group
    of society who are in a disadvantaged position on account of several social
    barriers and impediments and have, therefore, been the victim of tyranny
D   at the hands of men with whom they, fortunately, under the Constitution
    enjoy equal status. Women also have the right to life and liberty; they also
    have the right to be respected and treated as equal citizens. Their honour
    and dignity cannot be touched or violated. They also have the right to lead
    an honourable and peaceful life. Women, in them, hove many personalities
    combined. They are Mother, Daughter, Sister and Wife and not play things
E   for centre spreads in various magazines, periodicals or newspapers nor can
    they be exploited for obscene purposes. They mnst have the Eberty, the
    freedom and, of course, independence to live the roles assigned to them
    by Nature so that the society may flourish as they alone have the talents
    and capacity to shape the destiny and character of men anywhere and in
F   every part of the world.

            Rape is thus not only a crime against the person of a woman (victim),
    it is a cirme against the entire society. It destroys the entire psychology of
    a woman and pushes her into deep emotional crises. It is only by her sheer
    will power that she rehabilitates herself in the society which, on coming to
G   know of the rape, looks down upon her in derision and contempt. Rape is,
    therefore, the most hated crime. It is a crime against basic human rights
    anu   is also violative of the victim's most cherished of the Fundamental
    Rights, namely, the Right to Life contained in Article 21. To many faminists
    and psychiatrists, rape is less a sexual offence than an act of aggression
H   aimed at degrating and humiliating women. The rape laws do not, un-
     BODHISATIWAv. SUBHRA CHAKRABORTY [S. SAGHIRAHMAD, J.]              743

forunately, take care of the social aspect of the matter and are inept in A
many respects.

       It is said that present days' law relating to rape have their origin in
1736 in Britain, when Sir Mathew Hale in his Historia Placitornm Coronae
or, in other words, "History of the Pleas of the Crown" presented common-
law rape doctrines which were immediately noticed to be hostile to the B
interests of women as one of the requirement was to inform the jury during
trial that rape charges were easy to bring but difficult to defend Conse-
quently, in a tide of law reforms, this requirement was removed. The rule
of corroboration which was much stricter in a trial for the offence of rape
than for other offences was also largely removed from law.                     C

      In India also the rule of "Corroboration of the Prosecutrix" has
undergone a change through statutory amendments as also through
decisions of this Court.

      In State of Himachal Pradesh v. Raghubir Singh, (1993] 2 SCC 622, D
this Court observed as under :-

        "There is no legal compulsion to look for corroboration of the
        evidence of the prosecutrix before recording an order of convic-
        tion. Evidence has to be weighed and not counted. Conviction can E
        be recorded on the sole testimony of the prosecutrix, if her
        evidence inspires confidence and there is absence of circumstances
        which militate her veracity. In the present case the evidence of the
        prosecutrix is found to be reliable and trustworthy. No corrobora-
        tion was required to be looked for, though enough was available
        on the record. The medical evidence provided sufficient cor- F
        roboration."

      In State of Karnataka v. Mahabaleshwar Gourya Naik, AIR (1992) SC
2043=[1992] Suppl. 3 SCC 179, the Court went to the extent of laying down
that even if the victim of rape is not available to give evidence on account G
of her having committed suicide, the prosecution case cannot be thrown
away over board. In such a case, the non-availability of the victim will not
be fatal and the Court can record a conviction on the basis of the available
evidence brought on record by the prosecution.

      In spite of the decision of this Court that (depending upon the H
    744                   SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A circumstances of the case) corroboration of the prosecutrix was not neces-
    sary, the cases continued to end in aquittal on account of mishandling of
    the crime by the police and the invocation of the theory of "consent' by the
    Courts who tried the offence. To overcome this difficulty, the legislature
    intervened and introduced Section 114-A in the Evidence Act by Act No.
B   43 of 1983 reading as under :-

            "114-A. Presumption as to absence of consent in certain prosecutions
            for rape.- In a prosecution for rape under clause (a) or clause (b)
             or clause (c) or clause (d) or clause (e) or clause (g) of sub-section
            (2) of Section 376 of the Indian Penal Code (45 of 1860), where
C           sexual intercourse by the accused is proved and the question is
            whether it was without the consent of the woman alleged to have
            been raped and she states in her evidence before the Court that
            she did not consent, the Court shall presume that she did not
            consent. 11

D           This Section enables a court to raise a presumption that the woman
    who w~ the victim of rape had not consented and that the offence was
    committed against her will. The situation, however, has hardly improved.
    Conviction rates for rape are still lower than any other major crime and
    the woman continue to argue even today that in rape cases the victimised
E   women, rather than the rapists, were put on trial. A large number of women
    still fail to report rapes to the police because they fear embarrassing and
    insensitive treatment by the doctors, the law enforcement personnel and/or
    the cross-examining defence attorneys. The fear has to be allayed from the
    minds of women so that if and when this crime is committed, the victim
    may promptly report the matter to the police and on a chargesheet being
F   submitted, the trial may proceed speedily without causing any embarrass-
    ment to the prosecutrix who may come in the witness box without fear
    psychosis.

          We may, at this stage, refer to a decision of this Court in Delhi
G Domestic Working Women's F01um v. Union of India, (1995] 1 SCC 14, in
    which Court observed as under :-

             "It is rather unfortunate that in recent times, there has been an
             increase in violence against women causing serious concern. Rape
             does indeed pose a series of problems for the criminal justice
H            system. There are cries for harshest penalties, but often times such
BODHISATIWA v. SUBHRA CHAKRABORTY (S. SAGHIRAHMAD, J.)           745


  crimes eclipse the real plight of the victim. Rape is an exp~rience A
  which shakes the foundations of the lives of the victims. For many,
  its effect is a long-term one, impairing their capacity for personal
  relationships, altering their behaviour values and generating and
  less fears. In addition to the trauma of the rape itselts, victims have
  had to suffer further agony during legal proceedings."
                                                                        B
  This Court further observed as under :-

  "The defects in the present system are : Firstly, complaints are
  handled roughly and are not even such attention as is warranted.
  The victims, more often than not, are humiliated by the police. The C
  victims have invariably found rape trials a traumatic experience.
  The experience of giving evidence in court has been negative and
  destructive. The victims often say, they considered the ordeal to
  be even worse than the rape itself. Undoubtedly, the court
  proceedings added to and prolonged the psychological stress they D
  had had to suffer as a result of the rape itself.

  In this backround, it is necessary to indicate the broad parameters
  in assisting the victims of rape.

  (1) The complainants of sexual assault cases should be provided E
  with legal representation. It is important to have some one who is
  well-acquainted with the criminal justice system. The role of the
  victim's advocate would not only be to explain to the victim the
  nature of the proceedings, to prepare her for the case and to assist
  her in the police station and in court but to provide her with p
  guidance as to how she might obtain help of a different nature
  from other agencies, for example, mind counselling or medical
  assistance. It is important to secure continuity of assistance by
  ensuring that the same person. who looked after the complainant's
  interests in the police station represnet her till the end of the case.
                                                                        G
  (2) Legal assistance will have to be provided at the police station
  since the victim of sexual assault might very well be in a distressed
  state upon arrival at the police station, the guidance and support
  of a lawyer at this stage and whilst she was being questioned would
  be of great assistance to her.                                        H
    746                  SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.

A           (3) The police should be under a duty to inform the victim of her
            right to representation before any questions were asked of her and
            that the police report should state that the victim was so informed.

            (4) A list of advocates willing to act in these cases should be kept
            at the police station for victims who did not have a particular
B           lawyer in mind or whose own lawyer was unavailable.

            (5) The advocate shall be appointed by the court, upon application
            by the police at the earliest convenient movement, but in order to
            ensure that victims were questioued without undue delay, advo-
            cates would be authorised to act at the police station before leave
c           of the court was sought or obtained.

            (6) In all rape trials anonymity of the victims must be maintained,
            as far as necessary.

            (7) It is necessary, having regard to the Directive Principles con-
D
            tained under Article 38(1) of the Constitution of India to set up
            Criminal Injuries Compensation Board. Rape victims frequently
            incur substantial financial loss. Some, for example, are too
            traumatised to continue in employment.

E           (8) Compensation for victims shall be awarded by the court on
            conviction of the offender and by the Criminal Injuries Compen-
            sation Board whether or not a conviction has taken place. The
            Board will take into account pain, suffering and shock as well as
            loss of earnings due to pregnancy and the expenses of the child
            but if this occurred as a result of the rape.
F
            In the present situation, the third respondent will have to evolve
            such scheme as to wipe out the fears of such unfortunate victims.
            Such a scheme shall be prepared within six months from the date
            of this judgment. Thereupon, the Union of India, will examine the
            same and shall take necessary steps for the implementation of the
G
            scheme at the earliest. 11

          This decision recognises the right of the victim for compensation by
    providing that it shall be awarded by the Court on conviction of the
    offender subject to the finalisation of Scheme by the Central Government.
H   If the Court trying an offence of rape has jurisdiction to award the
     BODHISATIWA v. SUBHRA CHAKRABORTY [S. SAGHIRAHMAD,J.]             747

compensation at the final stage, there is no reason to deny to the Court A
the right to award interim compensation which should also be provided in
the Scheme. On the basis of principles set out in the aforesaid decision in
Delhi Domestic Working Women's Forum, the jurisdiction to pay interim
compensation shall be treated to be part of the over all jurisdiction of the
Courts trying the offences of rape which, as pointed out above is an offence B
against basic human rights as also the Fnndamental Right of Personal
Liberty and Life.

     Apart from the above, this Court has the inherent jurisdiction to pass
any order it consists fit and proper in the interest of justice or to do
complete justice between the parties.                                         C
       Having regard to the facts and circumstances of the present case in
which there is a serious allegation that Bodhisattwa Gautam had married
Subhra Chakraborty before the God he worshiped by putting Vermilion on
her forehead and accepting her as his wife and also having impregnated
her twice resulting in abortion on both the occasions, we, on being prim a- D
facie satisfied, dispose of this matter by providing that Bodhisattwa Gautam
shall pay to Subhra Chakraborty a sum of Rs. 1,000 every month as interim
compensation dmring the pendency of Criminal Case No. 1/95 in the court
of Judicial Magistrate, 1st Class, Kohima, Nagaland. He shall also be liable
to pay arrears of compensation at the same rate from the date on which E
the complaint was filed till this date. We may further observe that whatever
has been said in this Judgment shall not, in any way, affect or prejudice
the Magistrate from deciding the complaint on merits on the basis of the
evidence as may be tendered before it and in accordance with law.

v.s.s.                                                Petition disposed of.