Should a rape victim marry her rapist?

Photo Courtesy: Vancouver Sun

Photo Courtesy: Vancouver Sun

I normally avoid writing about complex socio-political- religious issues in my blog. It is very difficult to separate the signal from noise in such cases; besides, there is no guarantee at all that my view is in any way superior. And yet, the recent pronouncement of the Madras High Court leaves me so concerned, that I must write.

The case was simple. A man raped an orphan woman who had not yet attained the age of majority. She conceived and brought forth a bastard child, through no fault of hers. The lower Court in Cuddalore sentenced the rapist to an imprisonment of 7 years and a fine of Rs. 2 lacs. He appealed to the Madras High Court. The learned Justice of the High Court ruled that the rapist be granted bail so that he could “mediate” with the victim and marry her; and deposit Rs 1 lac for her maintenance. This unexpected verdict apparently is well-intentioned. The honourable justice explained that he was trying to protect the victim and her child from the social stigma of conception outside marriage. Further all religions (he cited Hinduism, Christianity & Islam specifically) provide for conciliation such that there is no “victor” and “vanquished”.  This, the honourable Justice opined, would provide greater chances of a “happy” conclusion to the episode. The question is: “Would it, really?”

Consider the following:

  • The Law provides for arbitration and mediation in Civil cases, not Criminal cases. Rape is a heinous crime. So the learned judge might have overzealously increased the scope.
  • True, Justice must be tempered with mercy, and delivered with an understanding of the local context. But a judge must decide cases within the framework of the Constitution; he cannot cite religious beliefs to support his verdict. That risks the judicial system being reduced to a Katta or Khap Panchayat !
  • Even assuming that the verdict was legally and morally the best course, it has put the victim in greater danger. What prevents the rapist from marrying the victim only to escape punishment and then desert her? What prevents him from committing violence and rape within the marriage and then claiming that it is a “private” matter?
  • Even today, poor people find it difficult to approach the authorities to get justice with dignity. How can we expect that the victim can get justice in an intra-marital cruelty case?
  • This is not a private dispute; it is a case of a victim of violence. The victim was herself innocent. She did nothing to invite social stigma. It is the society (whoever / whatever it may be) that heaps the stigma on a poor victim. Additionally,the perpetrator has now been given an “honourable” way out of a dishonourable act— without providing any guarantees to the victim. Where is the question of “victor” and “vanquished” in this context?
  • Marriage (or even consensual cohabitation between adults) is a framework for 2 people to share love, respect and dignity. It cannot be a framework for post-facto authorisation of sexual violence.
  • The victim has gone on record that she has no desire to marry the rapist. Society or Government has no right to impose a marriage ritual on the hapless woman in the name of “dignity”. What dignity can she expect from her tormentor?
  • As for the innocent child— is her biological father capable of parental guidance? Is “social dignity” more important than getting life’s lessons from an upright father-figure?

Such are the issues that have no clarity in the HC verdict. Perhaps, Judicial Activism needs to be tempered with pragmatism as much as Justice needs to be tempered with mercy!

GLOSSARY

Katta Panchayat / Khap Panchayat = Kangaroo court

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