The implications of a bench of the Supreme Court led by the Chief Justice of India asking a man accused of raping a minor if he would marry the victim are disquieting. Words uttered in the highest, most pre-eminent court of the land ripple out into the larger society. They have the power to expand the constitutional rights of citizens and defend them against unequal value systems of clan, caste, patriarchy. In this case, the SC’s remarks, unfortunately, risk perpetuating the offensive and retrograde idea of marriage as a payoff for the trauma and violation of rape. The court posed the question to a government servant, accused of stalking and then raping a 16-year-old girl multiple times as well as forcing her mother to not lodge a police complaint on the promise that he would marry the victim when she turned 18. The accused had appealed against a Bombay High Court order that struck down the anticipatory bail granted to him by a sessions court. “Will you marry her?” the SC bench said, before going on to grant the accused interim protection from arrest for four weeks.
Under the law of the land, rape is a “non-compoundable” crime. That is, the offence cannot be diluted or mitigated by any settlement reached outside court. The Supreme Court has repeatedly spoken out against such obscene matchmaking that devalues a woman’s worth by making her violation a matter to be settled between families to preserve the reputation and honour of male assailants. In a 2015 judgment in State of MP vs Madanlal, the court had unambiguously stated, “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”. In an earlier judgment in Shimbhu v State of Haryana, the SC had said, “Rape is not a matter to be left for the parties to compromise and settle.”
Nevertheless, the patriarchal understanding of the crime as a permanent damage to a woman’s social standing and place (the rape victim as the alleged “zinda laash”) discourages the pursuit of justice in favour of a “compromise” that somewhat restores the victim’s “honour”, even if it means exposing her to more violence from her husband/assailant. It is pertinent to note here that marital rape is not a crime under the Indian Penal Code. Such compromises are routinely peddled by police, village councils and lower courts. In 2015, the Madras High Court granted bail to a rape accused to mediate a marriage with the woman he had assaulted — even when the victim had declared her revulsion at such a settlement. The CJI’s remarks in open court could perpetuate this inglorious tradition and derail the progress made by several judgments that affirm the dignity and autonomy of Indian women as equal citizens. The onus is on the court to undo the damage.