Hindu Law, Jurisprudence and non-recognition of Rape as an Offence
Rape in Hindu Law
The first ever reference to rape in India was in the 1860 Penal code framed by the British when they ruled India. It is hard to understand that for 5000 years before this monumental enactment there was no recognition of rape in Hindu Law. The British deserve credit as the first governing authority that recognized rape as crime. Hindu jurisprudence had no definition of rape and generally was silent on matters of abduction as well. In fact marriage and forcible sex by abduction was recognized as a legitimate right of a man.
The Law by the British
The British incorporated two sections in the Indian Penal Code(IPC) namely 376 and 377 which defined rape as forcible intercourse against the will of a woman. An act of sex with a girl with her consent if she was below 16 was also recognized as an act of rape and punishable accordingly.
Hindu Law and the Sharia
From the 10th century Muslim rule commenced in India which lasted till the rise of British power. The law governing Muslim jurisprudence was the Sharia, which was not applicable to Hindus. But even the Sharia was so framed that rape was more a rule than an exception as the sharia law of evidence was so framed that for a woman to prove a rape was well nigh impossible. But at least for its faults the Sharia recognized rape. In contrast Hindu law never recognized rape as it was based on an amorphous concept called “dharma”, meaning the path guided by religion.
Laws of Manu and the Manusmiriti
Hindu law was basically based on the laws enunciated by Manu in his Manusmiriti. This is a religious book that lays down the rules and conduct of everyday life for Hindus. The Manusmiriti also does not recognize rape. The Manusmiriti consists of 2684 verses divided into 12 chapters, but any mention of rape is conspicuously absent.
The Manusmiriti was first translated into English by Sir William Jones in 1794. He was the first man who studied the Manusmiriti and he rightly concluded that these were the legal laws o the Hindu system of government and daily life.
Rape in Hindu Society
Despite there being no mention of rape this crime was prevalent in Hindu society. But sadly the judge was expected to deal all such cases within the purview of “Dharma”. This had varied interpretations and the judgments were colored more by caste and creed than any legal principles. Thus in case a King or Raja or a higher caste like a Brahman abducted a girl and raped her and then sent her away it was part of Dharma and no charges could be leveled against the offender. The Manusmiriti also mentions that a Brahmin has the right of entry into a Shudra (lower caste) house and rape his wife and no action could be taken against him. In contrast a Shudra ( lower caste)even touching a high caste woman was a punishable offence and the judges would mete out sever punishment including death.
Effect of Manusmiriti
Manu and his laws ruled Hindu Jurisprudence for almost 5000 years. The Manusmiriti laid down laws for castes, which were considered water tight compartments. A fact not acknowledged by Hindu theologians is the Hindu jurisprudence never recognized rape and the laws of Manu on the other hand gave licentious powers to the higher castes to allow exploitation and have sex with the lower caste women. All this only changed with the advent of the English and enactment of the India penal code of 1860.