During a hearing against the rejection of anticipatory bail by the Aurangabad bench of the Bombay High Court to a man accused of raping a minor, the Chief Justice of India asked the accused whether he would be willing to marry the survivor; and that if he did, he could get bail and keep his government job. These ‘observations’ evoked sharp condemnation.
A comment by a Supreme Court official which termed the criticism unfair, as the query was only made by the CJI based on records, is even more unfortunate. It reveals that there has been no engagement with the basis of the criticism.
The criticism of the Chief Justice is not because he is supposed to have come up with the idea of the accused marrying the survivor.
The issue is that even after seeing the records, where it was clear that such a settlement was made and that the minor survivor and her mother were forced to sign a document saying that the relationship was consensual, he thought it fit to proceed with the same approach.
Why a Rape Case Can’t be ‘Settled’ Through ‘Marriage’ Route
The practice of granting bail or quashing FIRs in rape cases on the basis of the accused marrying the survivor or any other settlements is against the dicta of the Supreme Court itself.
This is because rape is treated as an offence not against an individual but against society itself, and hence, cannot be settled between parties. It is also an issue that the genuineness of the consent given by the survivor can rarely be ascertained.
This also puts additional burden on the survivor as pressure may be exerted by the accused or her family. There have also been decisions condemning the practice, e.g., by the Delhi High Court and Madhya Pradesh High Court, which rightly said that allowing it would further embolden accused to induce or pressurise the survivor into a settlement.
In spite of this, there are multiple cases that have unfortunately gone the other way: a bench of the Supreme Court has reduced imprisonment based on a settlement; bail has been granted by the Madurai Bench of the Madras High Court so that mediation can be conducted by the accused and because the accused promised to marry the girl when she turns 18.
It is even more troubling that in the face of specific Supreme Court judgments saying that in heinous crimes like rape, which are to be treated as crimes against the State, compromise between parties has no effect on criminal prosecution, the Gujarat High Court has in two judgments relied on a warped interpretation of the law to quash FIRs against the accused who had raped minor girls and thereafter married them.
Deep-Seated Patriarchal Notions & Misplaced Sense of Care for Rape Survivor
We have to look through this misplaced sense of care for the survivor and society and see it as what it is — deep-seated patriarchal notions about honour of the society being linked to the ‘sexual integrity’ of a woman. Judges might think that they are looking out for a woman who has to remain unmarried after being raped and the only solution to make her life better is for her to marry the person who raped her (because who else would?). In most of these cases, judges ask if the man is willing to marry the woman who has been raped (like the CJI did).
It is baffling — and a product of ingrained patriarchy — that anyone could think that a woman (or child) must be asked to spend the rest of her life and have children with a man like in this case who stalked her, violently assaulted her for four years with the threat of bodily harm with acid on her and her family, and whose actions drove her to attempting suicide.
Indeed, such women are punished further for their entire lives when they are made to settle to live forever with someone who abused them physically and mentally. However, when the same judge seems to think that however brutal sexual assault may be, it is not rape if the parties are married, this is not very surprising.
Is Marriage Really a Solution?
Notably, if the survivor in this case were two years younger at the time of the offence, the accused could be punished with the death penalty. It is important to take a step back and think that in cases of rape, especially against young children, which are so grave that our lawmakers thought it fit to award the death penalty, our courts are letting them scot-free due to a settlement of marriage.
The Courts, while feeling like they are looking at the holistic wellness of the woman in society, must consider the practical implications of allowing this practice to continue.
While she may be painted as a helpless victim in the transaction, it does nothing to enhance her dignity in society. With actions such as this, it is only reasserting to all the women in the country that if they are raped, their only real solution to reclaiming dignity is marriage.
Due to this, when the accused offers marriage, she is compelled to settle like in this case or turn hostile if there is a trial. In many cases, as she may be pregnant, she is forced to settle and marry. But there are also cases when the panchayat or family of the accused exert intense pressure or threats to ensure a settlement or cases where the survivor will commit suicide not being able to withstand the pressure put on her to settle. The same courts that think they have seemingly made the life of the woman better do not see her actual condition living with a person who raped her.
The Silencing of Survivors & ‘License’ to Rape
If survivors were asked about their view on these settlements unlike most courts asking the man whether he is willing to marry the woman, it may bring about a whole other aspect. This brings up an issue which requires to be highlighted is that the survivor’s presence at the time of the bai hearing is crucial so that her objections are considered by the court.
While the Criminal Law Amendment, 2018 has mandated the presence of the survivor, it is not implemented. The Delhi High Court, noticing that its practice guidelines issued pursuant to the amendment was not being followed, has issued guidelines to the effect that the survivor or her representative must be present at the hearing for bail.
Recently, the Kerala High Court has said that benches must be sensitive to the nature of such cases and the survivor must be present even at the stage of anticipatory bail.
It is rather unsettling, the frequency with which parties approach courts seeking relief for rape accused, citing compromises or settlements. This practice has been quite unchecked due to mixed signals sent by the higher judiciary. It will lead to silencing of survivors and act as a license to rape. It has led to accused in cases such as one dealt with by the Patna High Court where a woman who was 8 months pregnant was gang raped and lost her child (which thankfully declined bail), having the temerity to push for a compromise and approach the courts for relief.
Working Towards a Safer, Fairer Criminal Justice System
Let us not expend all our collective rage seeking harsher sentences against persons who commit sexual violence and paint them as monsters. Our collective conscience needs to be awake for living, breathing survivors of sexual violence who need to be afforded the dignity of personhood, and we must work towards making our criminal justice system stronger for their protection.
(Ninni Susan Thomas is an advocate practicing in New Delhi. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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