Anushka MehtaCo-Founder, Rightantra Cheshta TaterCo-Founder, Rightantra The very definition of marriage lists “consent” as a prerequisite and yet marriage is posed as a remedy to rape victims—yes, the same act of rape which is based on the absence of consent. Recently, the internet blew up when the question “Will you marry her?” was posed to the accused rapist of a minor girl. For those who aren’t aware, minors are always deemed to be incapable of providing consent. Through this piece, Rightantra briefly highlights the shocking “marry-your-rapist” laws and mentality prevalent in various judgements passed by Indian courts.
Somehow, even in the 21st Century, when a girl, especially a minor girl, is raped, the only concern society, and unfortunately, even the courts, has is that the girl is now not “pure” enough to be married and therefore, the priority suddenly becomes marrying her off to the first willing person. Thus, proposing that the rapist marry the victim emerges as a golden solution. Forcing the victim to spend the rest of their life with the perpetrator of this heinous crime is a shameful solution whether it comes from the parents of the victim, the society, or even the Supreme Court. In the recent highly controversial case of Mohit Subash Chavan v. State of Maharashtra, a government servant was charged with the rape of a 16 year-old girl. The accused had promised through an agreement signed by the illiterate mother of the victim that he would marry the victim, on her majority. He sought relief from his arrest in the form of anticipatory bail which was granted to him at the District Court, simply because “the minor had sufficient maturity as inferred from the detailed report of her use of contraceptives”. The order granting anticipatory bail was set aside by the Bombay High Court. The Court, in its judgement, observed that the agreement appears to be a suspicious result of the influence exerted by the family of the accused. Consequently, the case was brought to the attention of the Supreme Court (decision pending). His intention to marry her was questioned during the Supreme Court hearing [“Will you marry her?”], as if his willingness to marry should pardon him of investigation for the alleged rape. Unfortunately, this is not the first time such bargains have been entertained by courts in matters as sensitive as alleged rape. The POCSO Special Court in Mumbai granted bail to the accused who was arrested for rape of a minor girl, since the already married accused had agreed to marry the minor victim upon her majority. The Court found the arrangement to be consensual despite protests from the police and prosecution. (here) Marriage as a solution for whom: the Accused or the Victim? The reason for uproar against marriage as a method of exonerating the accused or providing him bail is that not only is it a form of denial of justice to the victim of a heinous crime but it also takes away from the gravity of the offence of rape, treating it as an act from which one can walk away unscathed through a bargain. This is not all- the idea of treating marriage as a form of amnesty for the accused creates a stigma against the victim instead of the perpetrator, perpetuating the outlook that no one else would be willing to marry an “unchaste woman”. The notion only gets more and more hard to believe when we observe that it is only the men who are asked for their willingness, never once are the girls, who are the survivors of brutal crimes, asked for their consent despite having complete autonomy over decision making with regard to their person. Another aspect of such cases, which those who run to the defence of courts do not let us forget is that such questions are only posed when an arrangement for marriage has already taken place between the family of the accused and the victim. However, what they fail to understand is that such agreements on behalf of a minor could lead to their detriment, rather than benefit since the minor is not being allowed to marry anyone of her choice upon turning 18 years old but instead being saddled with a man who has hurt her in more ways than one. Courts should keep in mind when trying to ascertain the intention of parties as laid down by agreements, that marriage induced through force and fraud are grounds for annulment. What’s the Problem with Marry-Your-Rapist Laws? The archaic ideology that is reflected in the contentious statements made by courts has been long done away with by many other nations. Laws providing amnesty to the rape accused on the condition of marriage to the victim have been colloquially known as ‘Marry the Rapist’ laws. Such laws were prevalent in the legal systems of many foreign nations eons ago and have since then been repealed towards the later part of the 20th century. For example, article 291 of the Egyptian Criminal Code, 1937 previously gave any individual who committed the offence of rape the option of marrying the victim in order to avoid the penalty imposed by the code, but has been repealed since 1999. Even Jordan (article 308 of the Jordanian penal code), Morocco (article 475 of the Morrocan penal code) and Italy (article 544 of the Italian Penal Code) contained similar provisions which were subsequently repealed. One must think that the negatives of such a law need not be explained in the 21st century; however, sadly, judicial systems continue to stand by such ideologies in some cases. In others, society continues to perpetuate them. This antiquated thought process absolutely fails to understand the concept of consent, whether in or outside the marriage. While rape, as defined, refers to “forceful” and “non-consensual” sexual activity, these laws go as far as devoiding the bride (or in such cases, the victim) of consent to marry. The option of getting married rests with the rapist rather than the victim. Not only do these laws absolve the rapist of their crime, they also help him become the “knight in a shining armour” who saves the honour of the victim and her family. Even though such laws do not exist in India, one cannot ignore how the society forces the victim to marry her perpetrator in the name of shame and “who will marry you now?”. Especially when we talk about children who have been raped, such a mentality minimalises the act of rape indicating that one can bargain their way out of it—marry now, no jail, get divorced later. The intention of drafting an act like the POCSO Act (“Act”) was to bring to attention that minors lack the ability to provide sexual consent and it is a heinous crime to engage in any sexual activity with a minor. Unfortunately, the purpose of the Act is defeated when the victim is “forced to compromise'' and spend the rest of her life in an arrangement where she is raped every single day. Needless to say, this perpetuates the stigma surrounding rape victims portraying the fault to be that of the victim’s and the rapist to be the superhero. It’s absolutely shameful that discourse shunning such laws is still important in our “modern” society, when other developing countries have abandoned it ages ago. While creating awareness against apathy is never a bad thing, we must wake up and catch up with the rest of the world to provide women and girls with their rightful place in society. The call of the hour is to provide justice and respect to those who stand up to fight against abuse and crime instead of brushing it aside while treating them like mute spectators in decisions about their lives. Please note that the article is an expression of personal views and opinions of the authors' and NOT legal advice..
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