Marriage Between Rapist And Survivor Not Justice
CJI's proposal flies in the face of Supreme Court verdicts that say the concept of compromise doesn't arise in rape cases.
"Will you marry her?"
The Chief Justice of India SA Bobde's question to a government official has kicked off a storm culminating in calls for his resignation. The CJI's posed the question to a government official who has been accused of 'seducing' and raping a girl when she was a minor thus leading to the bizarre exchange in court.
The apex court on March 1 was hearing an appeal wherein the government official had challenged the Bombay High Court order setting aside the anticipatory bail granted to him by a sessions court.
During the hearing, CJI Bobde asked the government official's advocate if his client would marry the victim. To which, the advocate responded that he would take instructions from his client. "You should have thought before seducing and raping the young girl. You knew you are a government servant," CJI Bobde then responded.
"We are not forcing you to marry. Let us know if you will. Otherwise, you will say we are forcing you to marry her," the CJI went on to observe.
The CJI's observation came on a case where the government official allegedly followed a then 16-year-old who is also his distant relative. One day, when the girl was alone at home, he then barged in the house through the backdoor and allegedly gagged and bound her and thereafter raped her. The CJI granted the government official interim protection while he applied for regular bail in this matter.
The exchange, bizarre as it may seem, is not so bizarre in lower courts where rape cases are tried, particularly those which fall under the category of "false promise to marry". An article in LiveLaw noted at least 14 cases in 2019 where FIR in rape cases was quashed after the offender married the victim.
In 2015, the Delhi High Court observed no offence is made if a minor who is sexually assaulted is married to her accused since marital rape is not an offence.
Post facto marriage not a cure
The CJI's proposal flies in the face of the top court's own 2013 verdict where it said: "Rape is a non-compoundable offence, and it is an offence against the society and is not a matter to be left for the parties to compromise and settle." Another top court verdict, authored by former CJI Dipak Misra said there could be no concept of compromise in rape cases.
"Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error," former CJI Misra observed.
Firstly, there is no legal sanctity to the CJI's proposal. Secondly, since the victim was a minor at the time of the incident, the charges under POCSO applies which does not recognize consensual sex.
"The law does not recognize this. The issue is not with the justice system, it's a societal problem which rests on notions of purity and virginity," advocate Anant Asthana said.
"What the CJI said is not new. We have seen lots of cases, lower court decisions and high court judges asking such questions. This is taking a very minor view of a horrific offence," Dr Kumar Askand Pandey, a law professor at Dr Ram Manohar Lohiya-National Law University said.
"Despite what the society may think, post facto marriage does not cure problems, especially in cases like these. If anything, this whole arrangement is a part of the problem," Professor Mahesh Menon told BOOM. Menon who teaches law at Chennai's SAI university opined that the only loophole here is an insensitive and lackadaisical justice system.
"When it's a POCSO (Protection of Children from Sexual Offences Act) case, it does not matter if the victim consented. By law, it is akin to statutory rape. That's why on that count as well, the compromise is completely off the mark," Menon said.
In 2016, a Delhi court granted an alleged offender bail after he married the minor victim. However, it later emerged that the victim's in-laws started harassing her within days of the marriage. "I was beaten and abused. I left their house in 2 weeks. My family went to the police station to file a complaint, but no one listened to us," TheQuint reported her as saying.
"The marriage of a child victim with accused took place on 25.09.2014. No condition was put in the bail order as to how accused should live his matrimonial life. Therefore, on the strength of allegations made by child victim regarding accused treating her with cruelty on account of dowry demands or on account of physical and mental abuse, bail granted to accused cannot be cancelled. Child victim can take appropriate remedy with regard to her allegations as per Matrimonial Laws. Accordingly, the application of applicant Child victim seeking cancellation of bail of accused is dismissed," the judge observed when the victim approached the court.
Primitive and Patriarchal mindset a problem
"The mindset portrayed here is very primitive and patriarchal wherein you give a survivor her honour and dignity back through marriage with her abuser. Patriarchy influences decisions made by male and female judges alike. In its simplest form, patriarchy means that a woman does not have independent agency and her liberation lies in marriage," Pandey said.
"Even then, such unions do not have legal backing. Even if they marry, the offender is not exonerated from the charges he is accused of, he will still have to face trial. But now, in such cases, the prosecutrix turn hostile when they recant their allegations" Pandey added.
"When the CJI or any other judge make such observations or take decisions, such comments; those decisions have larger implication for everyone. It is not about that particular woman or girl alone, he said adding that, "What one has to understand is that once an FIR is lodged, the case has to go to its logical end. The offence is not compoundable which means that parties cant sit and negotiate, nor does it qualify for plea bargaining."
You diminish a woman's autonomy and agency when one makes such decisions. You do a great disservice to actual societal problems that exist and genuine victims cannot hope to get justice in this scenario," advocate Avi Singh said.
Judges in constitutional courts should be careful while making observations - even oral ones. It is not a good idea to have loose canons around, when everything that is being said carries some weight in the eyes of the public," Menon said.
However, Pandey reasoned that the "problem is in the conditioning of the society and the judges come from the same society."
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