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Friday, September 17, 2021

“Will you marry her?” SC’s question to man charged with assault & rape of minor girl, is a blot on judiciary

The apex court while hearing a bail petition by a government servant accused of raping a minor girl raised an absurd question asking if the accused was willing to marry the victim. Considering that judgments set a precedence in Bharat and are often quoted in subsequent orders, the apex court of the country even offering an escape route to a rape accused, that too in a POCSO (Protection of Children from Sexual Offences) case, certainly sets a bad precedence.

The case

The case details as reported by legal website Bar and Bench is reproduced below:

“The grisly facts of the case are that the petitioner used to follow the 16-year-old girl, a distant relative of his, on her way to school. One day, when the family members of the girl were out of town, he entered the house through the backdoor. He gagged the victim’s mouth, tied her hands and legs, and committed rape upon her.

The petitioner then threatened the victim that he would throw acid on her face if she disclosed the incident to anyone. He also threatened her with harm to her family members. Using these threats, he repeatedly raped the victim, who was in ninth standard, around 10-12 times.

One day, the victim attempted to commit suicide, but was stopped by her mother. The victim and her mother then went to the police station to lodge a complaint against the appellant. However, the petitioner’s mother stopped them from doing, promising that she would get her son married to the victim once she turns 18.

It was further alleged the petitioner’s mother made the victim’s illiterate mother sign an undertaking on stamp paper that there was an affair between their children and that the sexual relations were consensual.

However, when the victim attained majority, the petitioner’s mother refused to facilitate the marriage between the two. This prompted the victim to file a complaint against the petitioner.

On the basis of this complaint, an FIR was registered for charges under Section 376 (punishment for rape), 417 (punishment for cheating), 506 (punishment for criminal intimidation) of the Indian Penal Code and under Sections 4 (punishment for penetrative sexual assault) and 12 (punishment for sexual harassment) of the Protection of Children from Sexual Offences Act (POCSO), 2012.”

What did the lower courts say?

The Jalgaon sessions court granted anticipatory bail to the accused on 6 January 2020 which was challenged by the victim before Bombay High Court’s (HC) Aurangabad bench. The HC bench took cognizance of the victim’s lawyer’s contention that anticipatory bail shouldn’t be granted in such a serious POCSO offense.

The HC bench not just agreed with the lawyer’s contention but was also critical of the sessions court and opined that the order passed by the Additional Sessions Judge was atrocitious. The Aurangabad bench judgment says:

“If such is the state-of-affair, the impugned order passed by the learned Additional Sessions Judge is indeed atrocious…

…The approach of the learned Judge from such a reasoning clearly shows his utter lack of sensitivity in such serious matters. Inspite of having noted that the applicant was still a minor when respondent No.2 had sexually exploited her and inspite of observing that her consent would be immaterial, he has concluded that it was a consensual relation.”

Stating that the order was perverse, capricious and arbitrary, the HC set aside the sessions court order granting bail to the accused. Following this the accused approached the apex court to seek relief in the matter.

Apex court ruling

The Supreme Court granted the accused interim protection by staying his arrest order for four weeks and asked the accused to file for regular bail in the meantime. It was during this hearing that CJI Bobde himself questioned the accused if he was willing to marry the victim. Here is the what happened in court –

CJI Bobde asked counsel for the petitioner,

“Will you marry her?”

To this, the advocate replied,

“I will take instructions.”

“You should have thought before seducing and raping the young girl. You knew you are a government servant,” was CJI Bobde’s response.

“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 accused pleaded that he was already married and blamed the victim for turning down his marriage proposal earlier.

Courts offering escape route to accused

This observation coming from the country’s top court that offers the rapist a choice of marrying the victim is wrong at several levels and sets a bad precedence. It is almost as if Bharat is moving towards the Islamic Sharia concept of blood money where victim is ‘compensated’ monetarily or in kind for the sufferings arising out of the accused’s crime.

The question we must ask is should the courts legitimize such compromises instead of delivering justice to the victim. Such compromises are not just escape routes for the accused but also deny justice to victims and society. Readers may recall the case of Christian padre Robin Vadakkumchery who offered to marry his minor rape victim. In the Vadakkumchery case as well it was held that even if the sexual relationship was consensual it would be considered rape as the victim was a minor.

The Kerala High Court dismissed Vadakkumchery’s plea to marry his victim and stated:

“Citing several Supreme Court decisions against allowing compromise in rape cases, as it is a crime against the society, the high court said, “The above consistent view, though in the context of settlement of sexual offences, indicates the attitude of the court that any type of compromise in sexual offences or a lenient view cannot be accepted.”

Clearly, the apex court has previously held the view that there can be no compromise in case of sexual offenses, as is apparent from the Kerala HC judgment. However, by now casually talking of compromise between a rapist and his victim, the apex court is only legitimizing such compromises as there is a tendency to base future judgments on previous observations/judgements by courts in similar cases.

Studies have shown how ‘promise of marriage’ is often used by convicts or accused rapists as a ploy to evade punishment – “the accused then goes to jail for three-four months after which a settlement happens and the survivor flips her statement in court……reach either a monetary settlement or a marriage and it reflects on the legal system. Many of these marriage promises also turn out to be fake and the accused often abandon the victim soon after marriage.

It is important to make the distinction between rape charges filed over sex under false promise of marriage, and the present case where a minor was stalked, repeatedly & brutally raped and even driven to attempt suicide. The former is a grey area with legal opinion divided on whether all sex under false promise of marriage cases (especially when woman is an adult) should be termed rape. But what the government employee did with this minor girl is horrific, and that SC thought it fit to grant him interim protection is also shocking.

What has shocked ordinary citizens is the manner in which the CJI asked the question “Will you marry her?” and his use of the word ‘seduce’ (entice into sexual activity) in this case. This is akin to trivializing a serious, heinous crime.

Judicial reforms are the need of the hour

Furthermore, non-deliverance of justice would only sap the common man’s already dwindling belief in the country’s judicial system which is presently firmly under the grip of left-liberal forces. Inconsistent decision-making, a tendency to play to the left-liberal gallery, opacity in judicial appointment via the collegium system, and priority access to apex courts for clients who employ Lutyens’ lawyers are some of the reasons, among others, why common citizens have grown apprehensive of Bharat’s judicial system.

All this points to need for urgent reform and reboot of judiciary. Bharat needs to move away from the British common law system where a body of unwritten laws based on legal precedents gets established by the courts. Courts must confine themselves to interpreting existing provisions of laws rather than set the wrong precedent through controversial judgements as the present one. Most of all, judges should be chosen and held accountable by the people’s elected representatives, as it happens all over the world.

(Featured Image Source: The New Indian Express)


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Maitri
A opinionated girl-next-door with an attitude. I'm certainly not afraid to call myself 'a proud Hindu' and am positively politically incorrect. A Bharatiya at heart who loves reading, music, sports and nature. Travelling and writing are my passions.

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