RAPE AND MARRIAGE, WHETHER MARRIAGE IS A SOLUTION FOR RAPE?

Maya k

We are living in a civilized society and in the largest democratic country in the world. We can see in the newspapers about the attacks against women. Recently Chief Justice of India S.A. Bobde told to a rape accused that;

“If you want to marry, we can help you. If not, you lose your job and go to jail. You seduced the girl, raped her’[1]

These words are reflection of our society. It is clear that compromises are take place in case of sexual harassment cases. The question that remains here is whether marriage is remedy for rape.

There are many cases where sexual harassment cases are compromised. On 24 July, the 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. They married in June, when the accused was released on an interim 30-day bail[2]. On 16 June 2020, convicted rapist and Kerala ex-priest Robin Vadakkumchery sought a two-month bail from the Kerala High Court to marry the girl he had raped and impregnated when she was 16[3]. In 2015, a woman in Odisha married her alleged rapist as she reportedly had “no other option”. A joint petition by the accused and the survivor was filed, following which the judge ordered prison officials to organise the wedding.[4] In 2017 A 14-year-old rape survivor who gave birth to a child last year after being denied permission to abort her foetus has got married to her alleged rapist following intervention by village elders.[5] Dalbir Singh and Ors. V. State of Punjab[6], the charges for rape were quashed by the Punjab and Haryana High Court because the case had been compromised and the victim was married to one of the accused. In Md.Jahirul Maulana @ Jahirul ... vs.The State Of Assam And 2 Ors[7], Gujarat HC quashed the rape petition on the ground that accused married the victim. In Baldev Singh and Others vs. State of Punjab[8], though courts below awarded a sentence of ten years, taking note of the facts that the occurrence was 14 years old, the appellants therein had undergone about 3 ½ years of imprisonment, the accused and the appellants married (not to each other) and entered into a compromise, this Court, while considering peculiar circumstances, reduced the sentence to the period already undergone, but enhanced the fine from Rs. 1,000/- to Rs. 50,000/-. In Ajithkumar G vs. State Of Kerala[9], court quashed rape case on the ground that the victim got married to one of the accused. Also in Freddy @ Antony Francis & Ors. V. State of Kerala[10] and in Denu P Thampi vs. Ms.X[11] court quashed the rape case filed on the ground that the victim got married to the accused.

There above 10 crime cases squashed in 2019 in Kerala high court alone. As we all know rape is an act which makes injuries physically as well as mentally. Rape is the fourth most common crime against women in India[12]. The campaigns like #me too are raising in the society against many popular personalities in society. The human who comes under the female sexuality whether new from or the one who awaits for death become victim of rape. India recorded an average of 87 rape cases daily in 2019 and overall 4, 05,861 cases of crime against women during the year, a rise of over 7% from 2018 (the latest government data released on September 29, 2020)[13]. These are only the reported one and there are many cases which are not reported and settled as fast as possible. Recently some judicial decisions are supported marriage of victim and accused as marriage is a way to relief from the rape case. But there are decisions which stood against this. In State of M.P. vs. Bala @ Balaram[14] Court says that “The crime here is rape. It is a particularly heinous crime, a crime against society, a crime against human dignity, one that reduces a man to an animal”. Also held that the long pendency of the criminal trial or offer of the rapist to marry the victim are no relevant reasons for exercising the discretionary power under the proviso of Section 376(2) IP. Apex Court and various High Court in a series of decisions as in Shimbhu & Anr. v. State of Haryana[15], Parbatbhai Aahir v. State of Gujarat[16], Anita Maria Dias v. State of Maharashtra[17], Sebastian @ Solly v. State of Kerala[18], etc. held that ordinarily quashment of serious offences like the one as per Section 376 (rape), murder (302), decoity may not be done merely on the ground of settlement between the parties.

Our society considers rape as a crime only before marriage and after marriage they are not bothered about it. We are still believing in the concept of virginity. If a girl gets raped the society will give her extra pressure and give her a impression losing virginity is a big deal to the woman. This is crueller than anything. But if the boy lost his virginity, it does not take in to account by them. That’s why parents and the society compelling or advising the rape victims to marry the accused. The moment they get married the society believes that the act done by the accused is gone. It is believed that rape is only take place before marriage and after marriage does not. Post marital rapes are not considered as a crime and they say that it is common. The husband can make sexual intercourse with his wife whenever he wants, with or without the consent of his wife. And these domestic violations are not reported by those women and consider that crime as something to be hided.

Mere marriage cannot erase the crime. Because it effects the victim physically and mentally. The idea of marriage between rape victim and accused showing a new way of protection to the rapist. Punishment for a particular offence is a warning to the society too. Not doing the same by any other person. The life with a rapist will be miserable. He is worse than an animal. For the crime he did marriage is not a punishment. It is a punishment to the victim. Dr Natalia Kanem, executive director of the UN Population Fund (UNFPA), says that; “The denial of rights cannot be shielded in law. ‘Marry your rapist’ laws shift the burden of guilt on to the victim and try to sanitise a situation which is criminal.”

Indian women do not have sexual freedom even now. Sexual freedom is also a fundamental right which can be bring under article 21 of Indian constitution. Sexual intercourse with a woman without her consent is clear violation of her fundamental right. Even if the accused married her, the punishment must be provided for the accused for infringing her fundamental right. Because we follow the principle of Injuria Sine damnum. May be marriage diminishes her mental problems like insult from society or other but still not completely and the medicine can cure her physical injuries. But the violation of her legal injuries will exist there. The accused must be punished in a way that no one will dare to repeat it. And also provide necessary sex education to the society and make post marital rape as an offence against women.

[1] https://thewire.in/law/supreme-court-rape-accused-marry-pocso-government-employee

[2] https://www.livelaw.in/news-updates/orissa-hc-releases-on-bail-man-accused-of-rape-of-minor-upon-marriage-to-victim-160581

[3] https://theprint.in/judiciary/kerala-rape-convict-priests-plea-to-marry-survivor-not-new-here-are-similar-cases-from-past/463458/

[4] https://www.bbc.com/news/world-asia-india-31483956

[5] https://www.hindustantimes.com/india-news/bareilly-s-14-year-old-rape-survivor-who-gave-birth-to-a-child-last-year-married-off-to-accused/story-tKGrLOfbL0JfpSghHKaWmJ.html

[6] 1962 AIR 1106, 1962 SCR Supl. (3) 25

[7] Criminal Appeal No. 1740 of 2019. Decided on 22 November 2019

[8] (2011) 13 SCC 705

[9] Crl.MC.No.6689 OF 2019(E)

[10] 2018 (1) KLD 558

[11] Crl.MC.No. 8778 of 2017

[12] Kumar, Radha (2003) [1993], "The agitation against rape", in Kumar, Radha (ed.), The history of doing: an illustrated account of movements for women's rights and feminism in India 1800-1990, New Delhi: Zubaan, p. 128, ISBN 9788185107769. Preview

[13] https://thewire.in/women/average-87-rape-cases-daily-over-7-rise-in-crimes-against-women-in-2019-ncrb-data

[14] (2005) 8 SCC 1

[15] [2014 (13) SCC 318

[16] [(2017) 9 SCC 641]

[17] (2018) 3 SCC 290]

[18] (2015) (1) KLJ 384