Marriage cannot amend statutory rape

A rape convict, serving a 10-year sentence was granted relief by Justice Devadoss of the Madras High Court, after the victim from the Irula community, whom the convict married and had a child with, requested the judge to reduce the sentence. The Judge, saying justice had to be tempered with mercy, reduced the sentence to the term already served in jail. ‘The majesty of justice lies in its magnanimity,’ said the Judge.

Earlier, Justice Devadoss has granted bail to an appellant who was convicted of statutory rape of a minor girl, 15 years of age, slapped up with a 2 lakh fine and a 7 years prison sentence by a Sessions Court in order for him to settle the dispute by mediation.

The Apex Court, in Gian Singh v. State Of Punjab & Another, has explicitly stated, “Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences.”Therefore, the Honourable Judge, in both the orders quoted above, is flying in the face of express reasoning of the superior court, with several resultant and avoidable aftershocks, both to the victim and to gender justice.

Rape is a grave offence and is non compoundable. After conviction the only option before the said Judge is to decide on the merits of the case before him. Even if mediation takes place and the appellant marries the victim, he would still be facing a jail term unless the appeal is decided in his favour. By insisting on mediation after conviction the Honourable Judge is in fact saying that the appeal would be decided not on the merits of the case but the decision is contingent on the marriage to the victim; i.e., he is not interested in administering Justice with regard to the merits of the case. This reasoning is completely in opposition to women rights and gender justice and denies the woman a true remedy. This is especially so in the light of the fact that Rs. 2 lakhs, has been imposed as a fine on the offender which would be paid to the victim as a compensation. If after the marriage the offender abandons the victim, she will again have to approach the Court for maintenance as solace, albeit meager.

In the first  case, the survivor has married the perpetrator, we do not know if she has been forced into it by faulty social constraints of being a tainted woman if exposed to sex out of marriage, or because she was pregnant as a result of the rape. This unhealthy Hobson’s choice for a rape survivor should not be encouraged as it will lead to perpetrators marrying the victim to get out of a jail term and then abandoning them. Yet the judge chooses to encourage it , terming it magnanimity, without considering or being aware of the social consequences. In the second case,  the survivor has issued a public statement that expressly conveys that it is against her will, to reconcile the crime of rape with her rapist, in exchange for marriage. 

Therefore it is inappropriate that the judiciary should assume the role of the quintessential patriarch and condemn the survivor to the fate of accepting the rapist's hand in marriage as a peace offering, to emancipate her from the graver trials of bearing the cross of being nobody's wife. In allowing this decision, the High Court is effacing the autonomy and agency of a single woman, her right to a partner of her choice and to be the authority where her body is concerned.

So the question to be asked here is, to whom is the judge showing mercy- to the offender who is guilty o f grave violence and not to the poor survivor, who had no choice in deciding on having a  child, who was forced by social convention to marry a violent man and forced by society to petition for his release.

The two cases set  bad jurisprudential precedents as convictions in rape cases despite amendments in law in favour of victims are few and far between them due to bad investigation, judicial caution and cultural gender prejudice. If this order is allowed to continue to its logical course, then even the few Judges willing to convict the rapists will be hesitant to do so and mediation will become the norm in such cases.

Mediation in cases of gender violence and grave crimes must be discouraged. Victims who come forward to give complaints against offenders under conditions of grave social stigma and discouragement hence the victims will not be in an equal position to negotiate during mediation. They will be facing pressure from the lawyers of the offenders, mediators and in some cases from their own family members “to settle the case rather than pursuing it in Court and such settlement in sexual crimes is generally presented as marriage to the perpetrator exposing them to grave personal danger due to factors such as revenge as well as abandonment, harassment etc. Therefore mediation is not the solution even from a social point of view for sexual offences.

This reference to mediation has exposed the survivor to harassment as she is constantly being threatened by the police to appear for mediation where the appellant will be present as he has been enlarged on bail. Hence the victim has to relive the whole trauma of the incident and come up with super human efforts to resist the coercion of the appellant to marry him since the marriage is an advantage to the appellant which will be a forced marriage which in effect the Honourable Judge is facilitating.

Several lawyers and eminent jurists as well as the public have spoken out against the  reference to mediation but within two days, there has been another news report about the reduction of sentence in another rape case. The High Court’s word is the law and lower courts are bound by it, they are also bound to follow the High Court’s lead. It would be a poor day for women if  the rape law is diluted by the effect of  judicial decisions.                  

Of Possessions & Obsessions

The recent suicide of a techie, after killing his wife, had me thinking. Apparently, the reason was jealousy- he suspected his wife of an affair. Where do the self stop and the other begin? If one identifies with the other so much that parting would be like tearing of flesh then what is left of self and such identification is possible only if the other allows it. What if the other wants to be free- then the other becomes a possession- which is a cultural construct we are all familiar with especially with regard to women and children in whom we think are bound up lofty ideals like family honour etc which only intensify the chains for people who want to be unbound- a series of perpetuation of the Prometheus myth.

These are the kind of questions which exercise the mind of Isabel Dalhousie- editor of the Review of Applied Ethics, who in Alexander McCall Smith’s ‘ The Careful Use of Compliments has to deal with a whirlpool of emotions from which the only release is death as a complete change of life, the righting of an unfair dismissal by a careful and controlled takeover, the redistribution of inherited and therefore unearned wealth for social justice, all with whimsy and gentle humour, like the protagonist herself.
Talking of cultural constructs, the Law Commission’s recommendation that the age of marriage in the marriage laws be amended to make 18 the age of marriage for both men and women has raised a storm not least being the protest that it would result in under age girls getting married as the social norm is to allow younger girls to marry older boys. The amendment if it comes about will only bring it in line with laws elsewhere in the world. Anyway, our laws will still have an anomaly where child marriage is an offence but the marriage remains valid until revoked! The Supreme Court has added another anomaly to the issue by allowing a live-in partner to inherit a share in the partner’s property, though it only says that the partner would hold it in trust for the legal and absconding wife. The SC was giving the illegitimate children who are legal heirs their share, under the guardianship of the mother, without splitting the first wife’s share as she was not there to claim it. This is equity, but if we were to talk of legal change to accommodate second wives and partners, there would be a storm of protest- iniquitously. Anyway, the Supreme Court can only interpret or strike down law, not legislate when there is already a statute. This is also an artificial barrier of separation of powers that the Supreme Court has erected for itself. Just as in the Gita Hariharan case, the woman was given limited powers, not the right to recognition of the full exercise of powers possible, in the case