Dilution or outright waiver of punishment if a rapist offers to marry his victim is an extra-legal step, one that is not written into law anywhere. But it continues to be entertained because the internalization of stigmatization is wide-spread, and even the victims believe it.
The story of the rapist permitted to go scot-free if he marries the victim is rooted in ancient history, and this is more of a gender issue than a religious one. Susan N. Herman, Professor of Law, Brooklyn Law School, writes: “In some ancient societies, women were treated as a form of property and rape was defined as an offence against the property owner – the woman’s father or husband – not against the woman herself.”
Nonetheless the legal community appears to be willing to overlook this. “With regard to rapists marrying their victims, there is no rule of law at this point.”
Rape is a non-compoundable offence and is an offence against society, and is not a matter to be left for the parties to compromise and settle.
The recent judgement of Supreme Court on this particular case of State Of M.P. vs Madan Lal has not only highlighted the absurdness in the society but the victims falling prey to the heinous judgments and further being severely victimized by marrying the rapist.
In this case, the accused met the victim, seven years old then, on her way to home looking for her mother. As per the prosecution “The accused told her that her mother had gone towards the river and, so he took her near the river Parvati, removed her undergarment and made her sit on his lap, and at that time the prosecutrix shouted. [Accused] discharged on her private parts as well as on the stomach and afterwards washed the same. Upon hearing the cry of the victim, her mother reached the spot, and then the accused took to his heels. Victim narrated the entire incident to her mother which led to lodging of an FIR by the mother.”
The investigating agency examined witnesses, seized the clothes of the respondent-accused, sent certain articles for examination to the forensic laboratory and eventually after completing the examination, laid the charge sheet before the concerned court, which in turn, committed the matter to the Court of Session.
The Supreme Court of India in a judgment pronounced, held that in a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of. The Supreme Court accordingly ruled out mediation in such cases, and this judgment is highly relevant because of the controversial Judgment of Madras High Court wherein the Court had ordered mediation in a rape case involving a minor victim. The Apex Court was hearing an appeal filed by State of Madhya Pradesh, against a rape accused. The High Court in the matter had set aside the punishment provided by the Trial Court and restricted the sentence to the period already undergone by the accused. Earlier, the Trial Court had sentenced the person to five years.
Conveying its dismay with a judgment of the Gwalior Bench of the Madhya Pradesh High Court, the SC bench comprising of Justices Dipak Misra and Prafulla C Pant remitted the case back to the High Court for a reappraisal of the evidence and for a fresh decision. The bench opined that “such an attitude reflects lack of sensibility towards the dignity, the vital of a woman.”
It is painful to see as to how the judiciary reacts to such appeals or the requests made by the accused in such rape cases to set them free or to reduce the punishments by presenting the affidavits forcibly signed by the victim or influencing the same or offering them the proposals of marriage. Such an atrocious judgement of The High Court of Madras is a shame to India’s judicial system.
Whenever the rapist offers to marry the victim, one would think it’s the perfect solution. But isn’t this victimization of the victim all over again?
The girl has already been wronged once. And to add to the misery, her predator neatly escapes the consequences of the crime by simply marrying the girl. You never know, if this practice catches on, rapists might resort to such techniques on any girl they fancy. The rapist also takes advantage of the social stigma that no man will accept a woman who has been raped.
HC had not kept in mind its jurisdiction as an appellate court and dislodged the conviction and converted the conviction to one under Section 354 IPC in an “extremely laconic manner”. On 1st July 2015, SC allowed the appeal of the State and strongly objected to the High Court’s view. The Judgment was authored by Justice Dipak Misra.
Remanding the matter back to the HC, the bench ordered that the accused be taken into custody forthwith by the concerned Superintendent of Police and thereafter the appeal before the High Court be heard afresh. It also asked to ignore any offer to marry the victim.
Such an outrageous judgment of the HC of Madras brought light to many more similar cases where they promoted an idea of compromise between rapist and the victim.
Though many came to the foreground, but many shrieks of the victim also got buried under the laughter of the child born out of the rape or being pressured by their own family to marry the rapist to protect the prestige of the family. You normally don’t expect a girl to marry her rapist but in a recent case in West Delhi, a woman wanted to marry the guy who allegedly raped her. This is obviously not a one off case and definitely brings to limelight the existence of an insensitive society that doesn’t think twice before putting a girl up for trial, once again.
“This court has in the past noticed that [a] few subordinate and High Courts have reduced the sentence of the accused to the period already undergone to suffice as the punishment, by taking aid of the proviso to Section 376(2) IPC. The above trend exhibits stark insensitivity to the need for proportionate punishments to be imposed in such cases.”
Punishment should always be commensurate with the gravity of the offence; the Bench had said. “Religion, race, caste, economic or social status of the accused or the victim or the long pendency of the criminal trial or offer of the rapist to marry the victim or [the fact that] the victim is married and settled in life cannot be construed as a special factor for reducing the sentence prescribed by the statute. The power under the proviso should not be used indiscriminately in a routine, casual and cavalier manner for the reason that an exception clause requires strict interpretation.”
Referring to the Ravindra Case, the defendant was raped by the appellant in his field in the year 1994. The trial court found the accused guilty and sentenced him to 10 years of rigorous imprisonment with a fine of Rs. 2000/-, and on account of default of payment of fine, six months simple imprisonment. The High Court upheld the conviction and sentence awarded by the trial court. Aggrieved by this order of the High Court, the present appeal was filed before the Supreme Court by way of a special leave petition.
It was also brought to notice of the Court that they have since then entered a compromise- the copy of which was also submitted to the bench. In the compromise that was duly signed by the rape survivor, it was stated that she does not want to proceed with the case against the accused and wants to close the case. Considering the above-mentioned factors, the division bench examined whether the case falls under the proviso to section 376 of the IPC2 to award a lesser sentence for “adequate and special reasons”.
Baldev Singh Case: This was a case of gang rape in which the victim was raped by three men in 1997. By the time the case reached the Supreme Court fourteen years had passed. The division bench, while upholding the conviction, reduced the sentence to a period already undergone in view of proviso to section 376. In a two page order the division bench noticed that “considering the incident happened in the year 1997 and that parties have themselves entered a compromise”, there exist special and adequate reasons to reduce the sentence under the proviso to section 376(2)(g) of the IPC.
Shimbhu & Anr vs State of Haryana: The deponent has settled/compromised the said matter with the accused persons because them belonging to neighboring villages and of the fact that the deponent is married since January 1999 and has four children, she did not want the said case to be pursued any further. She further stated that she is living happily with her husband since the last twelve years. Finally, she stated that in view of the compromise entered into by her with the accused persons and in order to buy peace and to maintain dignity in her matrimonial life, she has no objection if the sentence of the appellants be reduced to the period already undergone.
There are many more cases that became the headlines and also highlighting the submerging judicial mindsets where P&H High Court quashed Rape Case against all 5 Accused based on the compromise between parties where one of the rapists offered the victim to marry her.
Also, many such instances remained the subject matter of some blogs or the magazine where they never reached out to the court and accepted the fate that was never written by themselves but by the society.
Such a settlement has been prevalent in various villages and been bragged in various movies and TV series.
Indian television has replicated these real life incidents into reel life. What they don’t understand is that this could lead to serious repercussions. TV channels should ensure that they are not propagating the act by showing victims marrying their rapists. Many films such as “Raja Ki Aegi Baraat” casting famous actress Rani Mukherjee and others like “Benaam Badshah” where one of the rape victims is Jyoti (Juhi Chawla), who was raped on the day of her marriage. Her life is ruined. Unwed, she decides to convince her rapist to marry her, and goes to live in his neighborhood. These movies depict the idea that the best solution to such wrong is marrying the rapist and the rapist, in this perverted logic of the order, is converted into the savior of the woman he raped, the knight in shining armor who will wipe out the curse of being “nobody’s wife, an unwed mother”.
We say that such platforms have a great effect on the Indian population and it must be used to widespread the wisdom and knowledge and not to mock the sensitive issues by portraying such trash to gain popularity. Having such a platform is a great opportunity and should be used to preach not to hail the audience.
One must ask to self whether being a so-called savior, must he be given bail or in the words of the order “be allowed to participate in the mediation as a free man and vent his feelings, open his mind and moorings?”
All such offensive statements by the jurists and the renowned persons, added to that the actions of our feigned society make us think that is it worth to ask for justice where the judges themselves give a thumbs up to the brilliance of the accused and their families.
There has been and still is a strong struggle on against rape cultures, cultures that blame the woman, cultures that justify the crime, cultures that trivialize the crime. But there is another dimension too, which is equally destructive, which while masquerading as being sympathetic to the victim holds that there is no life for a rape victim beyond the rape, that a rape victim embodies the living dead, that the rape victim will always have to live with social stigma, that at the end the only choice for her is to compromise with the perpetrator of the crime against her because in this view, it is a lesser price for her to pay. When a police officer says to a rape victim think twice before you file the complaint because it is you who will suffer, when a political leader says the rape victim is a living corpse, when society says, ‘poor thing who will marry her’, they are telling the victim- compromise, compromise, compromise. This is precisely the thinking reflected in this horrendous judicial order.
But all applauds to the Supreme Court and to the present Chief Justice Of India who is known for his broad perspective for reigniting the faith to the judicial system by setting the right path by the two bench Judgment, where the Court observed: “We would like to clearly state that in a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasize, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. 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. There cannot be a compromise or settlement as it would be against her honor which matters the most. It is sacrosanct.”
The High Court in its judgment had also noted the plea made by the accused that the “parties had entered into a compromise and a petition seeking leave to compromise. Though filed before the learned trial Judge, it did not find favor with him on the ground that the offence in question was non-compoundable and, therefore, regard being to the said factum the sentence should be reduced to the period already undergone, which was slightly more than one year.” The High Court had then accepted such a plea along with the observations that there were multiple contradictions in the prosecution’s case.
However, the Supreme Court did not appreciate the judgment of the High Court and observed, “In the instant appeal, as a reminder, though repetitive, first we shall dwell upon, in a painful manner, how some of the appellate Judges, contrary to the precedents and against the normative mandate of law, assuming a presumptuous role have paved the path of unbelievable laconicity to deal with criminal appeals which, if we permit to say- ourselves, ruptures the sense of justice and punctures the criminal justice dispensation system.” It also noted that the High Court had not perused all the evidence before it and that it does not satisfy the requirement of exercise of the appellate jurisdiction.
Though the Judgment is widely celebrated, the language used by Justice Dipak Misra invited criticism from Many lawyers and Activists. Supreme Court Lawyer Vrinda Grower wrote a Comment in her Facebook Page saying, “The woman’s right to bodily integrity stems from constitutional rights, human rights and not conservative notions of reputation, chastity, honor, dignity. Compromise in rape cases is prohibited by law. It is important for Supreme Court, and all other courts to premise their decisions on legal reasoning and not because they are kindly or charitably disposed towards women. Recent judgments of the courts make a compelling case for an urgent dialogue on the constitutional and human right to equality, rights of women and sexual violence, across the legal system”.
The decision was favored and cherished by all and the order of Madras High Court had to be struck down on the legal grounds. Very importantly, Alternative Dispute Resolution is mostly used in commercial cases or cases of a civil nature. It cannot, under any circumstances, be used in cases of violence against women, least of all in cases of sexual assault and the High Court or any other Court has no right at all to force a woman rape victim to go for mediation with the rapist.
Affirming to the compromising amongst the parties to the rape means compromising with the legal system of India that can, in no way be tolerated.