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Mainstream, VOL LX No 6, New Delhi, January 29, 2022

Kerala: Male bias in the judiciary led to acquittal of Bishop Franko Mulakkal | Sukumaran C.V.

Friday 28 January 2022, by Sukumaran C.V.

The Sessions Court verdict that acquitted Bishop Franko Mulakkal who was accused of raping a nun, by casting aspersions on the character of the nun, unequivocally proves the masculine bias of the judiciary.

The revolt of Nora, the protagonist of the Norwegian dramatist Henrik Ibsen’s masterpiece play A Doll’s House, was a thunderbolt to the male-centric social and moral ethos of Europe. In the notes made for the play in 1878, Ibsen says: “a woman cannot be herself in the society of the present day, which is an exclusively masculine society, with laws framed by men and with a judicial system that judges feminine conduct from a masculine point of view.”

In our country, politicians, criminals, rapists, educators and even judges subscribe to the most dangerous and heinous notion patriarchy spreads—if a girl or woman is raped or sexually exploited, the fault lies not with the culprit(s) but with the victim(s)!

The culture of blaming the victim when it comes to sexual violence against women is shared by the collective male psyche of this country. In 2011, the Maharashtra Industries Minister Narayan Rane told a female audience that ‘It’s all very well to demand women’s quotas in politics but take care of the house and children first. That is our sanskriti and that is what I believe.”

In the backdrop of the Baduan gang rape case, the veteran UP politician Mulayam Singh Yadav said that "boys are boys and rape is only the mistakes committed by them"!

We can ignore these remarks as the blunders of the politicians. But what can we do if we see even our ‘learned’ judges too share the same mindset!

23 years ago, a minor girl from Sooryanelli in the Idukki district of Kerala was seduced by a man and was trafficked throughout the state offering the girl to more than forty people. The case is known as the Sooryanelli case. The special court convicted 36 persons to rigorous imprisonment in the case. But a division bench of the Kerala High court acquitted all the 35 accused and mitigated the punishment of the remaining one.

In February 2013, one of the two judges who acquitted the culprits was caught on video as saying that the Sooryanelli girl had been deviant, immoral and it was a case of child prostitution, not abuse.

It means that the culture of blaming the victim which the patriarchal mindset of the judge shares played a prominent part on delivering the judgment. It means that the judgment was a biased one. It means that the judge wrote the judgment with a bias against the victim—gender bias! It means that we have still ‘a judicial system that judges feminine conduct from a masculine point of view’.

I am reminded of Ibsen’s words and the Sooryanelli case when I went through the judgement that acquitted Bishop Franko Mulakkal who was accussed of raping a nun in Kerala. The judgment meticulously tries to cast aspersions on the victim’s character instead of considering the evidence against the accused.

The judgement (dated January 14, 2022) of the Sessions Court, Kottayam district of Kerala (Sessions Case N. 457/2019) which can be accessed on http://www.livelaw.in says in its 71st paragraph: "As in all cases of sexual violence, it is the oral testimony of the victim which is of paramount importance." And the same judgement observes in the 388th paragraph: "Now this court will analyse the solitary evidence of PW1 and see how far her solitary evidence can be taken reliance. Her revelation to PWs 3 and 4 during December 2016 was that Bishop is forcing her to share bed with him. She did not disclose to them that she was subjected to sexual violence on 13 occassions. ...Her version to PW6 was that accused is taking retaliatory measures for not sharing bed with him and not she was raped or sexually abused. In her additional statement and Sec. 164 statement her version was that she was subjected to forcible penetration on 12 occasions and there was only fingering on the first occasion. These inconsistent versions at different point of time to different persons pose question on her credibility."

And it further says in the 389th paragraph that "In the said circumstances, the claim of the victim that she was raped on 13 occasions under duress cannot be taken reliance on the basis of her solitary testimony."!!

The bizzare aspect of the judgement is its over-enthusiasm to "see whether there is any substance in the doubts raised by the defence" in relation to the statement PW16 deposed before the Court in favour of the victim. PW16 is the daughter of the victim’s uncle and she falsely alleged that the victim had an illicit relationship with her husband in a letter and the defence produced the letter in court and PW16 herself told in the court that the content of the letter was false.

I am quoting from the judgement: "PW1 deposed that Jaya (PW16) is her first cousin. Jaya and her husband Anand (CW17) were in a live-in relationship....When Jaya’s sister Sr. Anu came to Delhi from the US, she alleged that Sr. Anu had an illicit relationship with Anand...PW1 claims that when Jaya feels tensed, she starts doubting her near and dear ones and she is on medication for her illness. (Paragraph 99).

"PW1 admits that Anand had forwarded a message to her phone in November 2016 which she felt to be inappropriate. She called him and warned him not to send such messages to her. She also warned him that if he sends such inappropriate messages she would forward it to Jaya. Subsequently Anand sent her another message which was forwarded to Jaya. She called Jaya and told her about the message sent by Anand....Jaya alleged to PW7 that PW1 had an illicit relationship with Anand." (Paragraph 100).

"Though PW16 claims that her complaint was a false complaint, defence contends that PW16 was subsequently won over by PW1 and her family since their reputation was at stake. The reputation of PW16 and her husband was also at stake and hence she purposefully retracted from her complaint, contends the defence. Now let us see whether there is any substance in the doubts raised by the defence." (Paragraph 276).

The judgement is finding "substance" in the complaint of PW16 against the victim in order to question her credibility, even when PW16 herself deposed that the complaint was a false one!

The 289 page verdict proves unequivocally that the sole aim of it is not to punish the culprit but to save him by casting aspersions on the victim’s credibility or character.

The verdict is an exemplary one not in the positive sense, but in the negative. It proves that we still have "a judicial system that judges feminine conduct from a masculine point of view" and for the benefit of the male aggressors and rapists.

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