‘Will you marry her? If you are willing to marry, we will consider this (petition)…or else you will go to jail and lose your job’ This statement, in seclusion too, is perturbing. But when the Chief Justice of India is asking this question during a hearing of a rape-accused at the apex court, it is appalling, to say the least. Then, does CJI Bobde’s ‘marry the victim’ remark trivialize rape as a crime?
The Supreme Court is the highest seat of justice in India — it is supposed to look after the constitutional rights of the citizens of the country. it is supposed to protect them from crimes and serve justice when a crime is committed, it is meant to defend Indians against the archaic systems of caste, creed and patriarchy.
What is the case that CJI was hearing?
According to the FIR, the accused had stalked and raped the petitioner repeatedly through 2014-15. At that time she was a student of Class 9 — a minor. The accused’s mother promised the family of the victim that she would get her son married to her but that never happened and the accused got married to someone else. The defendant’s lawyer said that the Aurangabad Bench of the Bombay Hich Court had cancelled his preemptive bail on February 5 after the woman complained. The SC bench has put a stay order on the arrest of the perpetrator for four weeks. This allows him the time to apply for regular bail at a trial court.
How can I have anything but contempt for a CJI who asks a man who violently, repeatedly raped a minor girl, pushed her to attempt suicide, if he will marry his victim. How can any girl or woman in India be safe with CJIs like Gogoi & Bobde? #thread https://t.co/YLSlmkF26W
— Kavita Krishnan (@kavita_krishnan) March 1, 2021
But what does this statement coming from the highest seat of justice in the nation mean? Does it trivialize rape as a crime? It reduces a “non-compoundable” crime like rape to nothing. Which, according to the law, means that no out-of-court settlement is allowed in such cases — they tried to do it during the proceeding! The Supreme Court itself has, more than once, stated that any such settlement only disrespects the victim and what they have gone through — it reduces their suffering to nothing and degrades the honour of a woman. In 2015, the apex court, while delivering judgement on the State of Madhya Pradesh vs Madanlal case, had said, “In a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of … Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock which is nothing but putting pressure in an adroit manner, and we say with emphasis that the courts are to remain absolutely away from this subterfuge.”
Women’s rights groups have come out and protested against CJI SA Bobde asking him to resign for this remark. “It fills us with rage that women bear the burden of having to explain the meaning of ‘seduction’, ‘rape’, and ‘marriage’ even to the Chief Justice of India, who holds the power and duty to interpret the Constitution of India and sit in judgement,” said an open letter from more than 4,000 women’s rights activists. “Enough is enough. Your words, scandalise and lower the authority of the Court. From the towering heights of the post of CJI of the Supreme Court, it sends the message to other courts, judges, police and all other law enforcing agencies that justice is not a constitutional right of women in India. This will only lead to the further silencing of girls and women, a process that took decades to break. To therapists, it sends the message that marriage is a licence to rape; and that by obtaining such a licence, the rapist can post facto decriminalise and legalise his act,” the letter further read. Does CJI Bobde’s ‘marry the victim’ remark trivialize rape as a crime?
CJI Bobde asks if 'act of sexual intercourse' between live-in couple can be called rape 'however brutal the husband is' https://t.co/hR9UKP0UnO
— Janta Ka Reporter (@JantaKaReporter) March 2, 2021
How does the CJI’s comment trivialize rape as a crime?
The CJI’s comment has some very serious implications. It not only trivializes rape as a crime — but also makes it seem OK if the rape accused offers to marry the victim. This gives a kind of licence to marital rape which is not a crime under Section 375. Section 375 of the Indian Penal Code (IPC) says that forced sex in marriages is a crime only when the wife is below age 15. So, marital rape is not a criminal offence under the IPC. Marital rape victims have to turn to the Protection of Women from Domestic Violence Act 2005 (PWDVA).
The Supreme Court has been belting out one controversy after the other. While hearing another case, a bench headed by the CJI asked, “If a couple is living together as man and wife, the husband may be a brutal man, but can you call the act of sexual intercourse between a lawfully wedded man and wife as rape?”
This incident is yet another example that says where we exactly are when it comes to empowerment and protection of women in the country. The Kerala priest who was accused of raping and impregnating a minor girl told the court that he was ready to marry her if he was let off the hook. He was facing 20 years of imprisonment. The Madhya Pradesh High Court had asked an accused molester to get a rakhi tied on his wrist by the victim and give her gifts and cash. It also asked him to “seek her blessings” and promise to protect her.
This does not make us stand very far from countries like Turkey, Iraq or Russia where the perpetrators are allowed to marry the victims of rape. For the past few years, especially since CJI Justice Bobde took over, the Supreme Court has been embroiled in numerous instances of such “loose talk” in court. This will not only reduce the position of the Supreme Court of India but also give a free pass to criminals if marriage is the key to get bail in a rape case.