Background

• In the recent past a Supreme Court bench headed by Chief Justice of India (CJI) SA Bobde asked a rape accused whether he was ready to marry the complainant, attracting criticism from some lawyers.

 

Rape and Sanction to marriages

• Rape is sexual assault or intercourse without consent.
• The offence becomes all the more serious if the victim happens to be a minor as she can’t give valid consent.
• But often victims are coerced to marry their violators due to fear of stigma, pressure from family and society. Unfortunately, courts end up giving sanction to such marriages.

 

Marry-your-rapist law/Convention

• A marry-your-rapist law or Rule is a rule under which a man who commits rape, sexual assault, abduction or other similar act is exonerated if he marries his female victim.
• The "marry-your-rapist" law is a legal way for the accused to avoid prosecution or punishment.
• This practice has existed in a number of legal systems in history, and continues to exist in some societies today in various forms.
• Since the late 20th century, laws of this type have been increasingly challenged and repealed in a number of countries.
• In India, the marry-your-rapist-to-get-out-of-jail-free card is not recognized under any law. Yet, it continues formally within courts and informally within families and village councils.

In 2017, a World Bank Group report claimed there were 12 countries left with marry-your-rapist laws: Angola, Bahrain, Equatorial Guinea, Eritrea, Iraq, Jordan (repealed in August 2017), Lebanon (repealed July 2017), Libya, Palestine, the Philippines, Syria and Tunisia (repealed in July 2017).

Some instances

• In 2017, in a Madras High Court judgment (Madurai Bench), the accused was granted bail after impregnating a minor girl as he said he was willing to marry the victim once she attains majority.
• In 2020, Orissa High Court granted bail to a rape accused, arrested under a Protection of Children from Sexual Offences (POCSO) case, for marrying the girl he had raped, now that was an adult.
• Madhya Pradesh High Court’s 2020 order granting bail to a molestation accused on the condition that he would request the victim to tie him a ‘rakhi’.
• There are several such examples from across India.
• National Crime Records Bureau (NCRB) data from 2018 records 10,553 cases under the ‘known persons on promise to marry the victim’ rape cases.

Ethical issues

There are a number of Disturbing Questions in the first place

• Does rape-an act of crime cease to exist if the marriage occurs?
• Does marriage then become a gateway through which we legitimize rape?
• Does the gaze of the Hon’ble court that calls the man a rapist before marriage, escape him if he marries the victim?
• What does then justice look like for a survivor of rape when the very accused instead of being penalized is let go stating marriage as a compromise?
• How are we sure that the man will not turn violent again?
• How are we sure that the only way he wishes to escape conviction is to marry the victim?
• What if he abandons her later?
• Wouldn’t the society now questioning the “falsity” of her rape case, accuse her of again filing a false case of domestic violence?
• Are we somewhere losing sight in our safety plans and threat perception for the survivor?

In a nutshell, these conventions:

• Deny justice to survivors
• Signal that rape is not a serious crime and can be talked or bargained away
• Allow women to be traded as possessions between families
• Take away the survivor’s control of her choices and future and risk her continued abuse
• Perpetuate a mindset that places the stigma and shame around rape on the survivor rather than the perpetrator
• Exploit the situation of those with few resources, especially in relation to those with greater societal power
• In many cases marriage is a rescue ploy for convicted or accused rapists to evade punishment.

Violates Constitutional Rights

• Article 14 : Equality before law
• Article 15: prohibits discrimination on grounds of religion, race, caste, sex or place of birth
• Section 376 (2) (f): Rape of a woman who is under twelve years of age. Punishment: Rigorous imprisonment for a term which shall not be less than ten years
• 376 Subsection 2- e - Rape of a woman, knowing her to be pregnant. Punishment: Rigorous imprisonment for a term which shall not be less than ten years.
• Criminal Law (Amendment) Act, 2018 which for the first time put death penalty as a possible punishment for rape of a girl under 12 years; the minimum punishment is 20 years in jail.

Ignores recommendations

• Justice Verma Committee: Recommended to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women.
• Malimath Committee: The trial of rape cases should be done with most expeditiously, within four months, and with a high degree of sensitivity.

Sanction by the Court of Law: A grave Concern

• Sanction to such marriages by court is rooted in a patriarchal society.
• The patriarchy adheres to control female sexuality and uphold the family honour.
• This patriarchal wisdom calls for protecting the daughter’s virginity.
• In the case of rape, marriage, or even promise of marriage provides reinstating the lost family honour that is in the woman’s body.
• The family forcing the victim to marry the rapist is a reflection of the same patriarchy.
• By not criminalising the rapist, the court provides an option to escape conviction through marriage.
• This tactic takes advantage of cultural issues around rape, where raped women are, to this day, looked upon as Zinda lash – living dead.
• The question is -- How a judgment, which by getting the woman married assumes, will save her honour especially in case of rape.
• What then becomes the difference between a Caste Panchayat that functions with cultural notions and the Law of the Land..

 

Judges are not the ‘other’ but part of this very patriarchal society.  And “Marriage” as relief
is a wrong moral notion, bringing back the honour to the woman and her family. 

When Judiciary falls into the Patriarchal Trap! Justice Neena Krishna Bansal once remarked: “It becomes very difficult for us as judges to strike a balance between the social reality and the legal binding.”  A “rapist degrades and defiles the soul of a helpless female” and inflicts a “serious blow to the supreme honour of a woman, and offends both, her esteem and her dignity” (Supreme Court in Deepak Gulati vs state of Haryana, 2013).  “The victim of rape grows with traumatic experience and an unforgettable shame haunted by the memory of the disaster forcing her to a state of terrifying melancholia,” noted the Delhi High Court in Rohit Bansal vs State (2015). In 2015, the Madras High Court, in a highly criticised order, granted bail to a convicted rapist and advised a “compromise” between him and his unmarried victim, who had subsequently become pregnant.

Silver Lining

• In a 2013 case (Shimbhu & Anr vs State Of Haryana), the Supreme Court itself had come down heavily against the practice of “Marry your Rapist” convention.
• There could be no compromise, ruled Justice Dipak Misra as, “Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay.” (State of M.P. vs Madanlal, 2015) – Supreme Court.

When survivor wants to marry the accused

• A question that usually follows is what if the survivor herself wants to marry the accused, especially in cases of POCSO or promise to marry.
• Patriarchal societies stigmatize rape to the extent that a woman loses her ‘honour’ and purpose of life if she is raped. Even the courts are not immune to the idea of the ‘fallen’ rape survivor.
• Hence, the initial reaction of the survivor lies in the idea that marriage to the rapist will give her social acceptance.
• The survivor herself wants her honour back in a patriarchal society.
• A patriarchal society and family that now knows she has had sexual relations. Her gendered conditioning assigns the act of coitus, loss of virginity as a traverse to an eventual marriage.
• It’s high time that the agency and autonomy of the woman is put at the centre of all interventions and judgments.

Time to think! When instead of penalising the accused, the hon’ble court provides them bail, caveat as marriage.. What does justice look like for the rape survivor? Justice that walks through the institution of marriage.. Justice, that views children born out of rape as an outcast and hence legitimized only through marriage… Justice, that writes in the voice of patriarchy. Justice, that adheres to the language of the oppressor…

Conclusion

• The bottom line is that rape is the worst form of crime that violates a woman’s body, mind and soul. It is a violent act.
• And it does not matter if the victim did not cry for help, was asleep or protested with a feeble “no.”
• Violence should always be non-negotiable for the court of law.
• A civilized society has certain non-negotiables which can’t be tinkered with.
• The perpetrator has to be awarded deterrent punishment.
• He can’t be incentivized by giving legal sanction to his gruesome act by allowing such marriages.
• Indian judiciary which has time and again restored public trust by ushering “Justice” needs to frame strict laws against such “marriage arrangements” and break patriarchy.

 In its own Words Supreme Court had said: “Male chauvinism has no room in a civilized society and
the "obnoxious" act of even eve-teasing affects justice and the rights of a woman.”