Can forceful sex with a 65-year-old woman, who is beyond the age of menopause, punishable under law? Delhi High Court judges seem to think otherwise. A judgment made on Friday by the Delhi High court in the case of rape and murder of an old woman in December, 2010 has sparked a debate on whether sexual intercourse with a post-menopausal woman can be treated as rape.

The judgement, made by a bench comprising Justice Pradeep Nandrajog and Justice Mukta Gupta has let off the accused, 49-year-old Achey Lal, waiving off the punishment meted out to the accused on the grounds that even if the intercourse “has been forceful, it was not forcible”.

“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,” read the judgement.

In December 2010, the victim was found dead inside her house in Majnu ka Tila along with an inebriated Achey Lal by a girl at whose house the victim worked. Achey Lal was arrested and eventually sentenced to 10 years of rigourous imprisonment. The post-mortem of the victim revealed that she has sustained injuries on her vagina, and traces of alcohol were found on her, too.

Lawyer-activist Vrinda Grover questioned the use of the word ‘menopause’. “On what grounds did the court has arrive on the judgement that the case was not one of rape? And where does menopause factor in here? Menopause is a medical condition, and the mention of the word is extraneous and erroneous. The injuries on the victim’s vagina proves that there was forced penetration, and the inference will lead to the criminal case of rape. Also, the judgement says that there are no other injuries, which is clearly a step back to the pre-Mathura era, where one would look for injurious to prove rape. The Mathura rape case led to two amendments; one, there should not be any requirement about explaining injuries for rape. And secondly, consent should be univocal. This case, to my mind, without the privilege of any evidence to be able to construct the case and thus rely on the judgement, is erroneous and not according to the jurisprudence of the Supreme Court,” said Grover.

Jugmati Sangwan of the All India Democratic Women’s Association said that the age of the woman should have, in fact, led to a bigger punishment. “Age does not matter in rape; 80-year-olds get raped, too. If the culprit is revengeful and bent on causing maximum harm, the age is a deterrent than. Should the age alone not be considered for any ground? This should lead to more punishment,” said Sangwan.

Lawyer Collin Gonsalves, however, said that the court could have been right, but the mention of the word ‘menopause’ is unfortunate. “It is a very cryptic judgement, and the reference to the word ‘menopause’ is unfortunate, unnecessary and irrelevant. The injuries on the vagina, however, indicates rape. Despite that, the court could be correct as injuries alone cannot lead a criminal court to conclude that it can be rape. There must be more evidence, because this could also have been a case of rough intercourse; forceful yet consensual sex,” said Gonsalves.

Read the judgement here.

Last Updated on November 4, 1:15pm