No, any victim of sexual assault can’t just be married off!

A meditation on the marry-the-victim travesty in light of the recent judgment of the Himachal Pradesh High Court.

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IN a world often shrouded in silence and veiled by societal expectations, there exists a haunting misconception that the path to healing for a victim of sexual assault can be paved with the solemn exchange of wedding vows.

This notion, as archaic as it is damaging, persists in the shadows of our collective consciousness, like an insidious whisper that suggests that the supposed sacred institution of marriage can erase the scars of trauma.

But, let us be unequivocally clear— a victim of sexual assault cannot, and must not, be merely married off as if it were a cure-all for their pain. The journey from victim to survivor is a complex, deeply personal odyssey, and it is high time we debunk the myth that marriage is a panacea for the profound wounds inflicted by sexual violence.

The Himachal Pradesh High Court has raised concerns about the practice of dismissing cases under the Protection of Children from Sexual Offences (POCSO) Act, 2012 due to compromises between the parties involved.

Justice Virendra Singh, in his judgment in the case of Ranjeet Kumar versus State of Himachal Pradesh, has disagreed with the decisions made by another Bench of the court that had previously dismissed first information reports (FIRs) under the same Act in similar situations.

As a result of this disagreement, Justice Virendra Singh has decided to refer the matter to a larger Bench for further consideration.

Why are sexual offences a serious concern?

Should that even be a question? Nevertheless, according to the National Crime Records Bureau (NCRB) data, in 2021, a concerning total of 428,278 cases of crimes against women were officially registered, representing a notable increase of 15.3 percent when compared to the previous year's statistics, in which 371,503 such cases were recorded. These figures paint a distressing picture of the state of women's safety and security in the country.

Also read: Can FIR under POCSO be quashed if offender marries victim, Himachal HC refers matter to a larger Bench

The majority of these reported cases of crimes against women were classified under various categories within the Indian Penal Code (IPC), 1860. The data sardonically suggests that 'cruelty by husband or his relatives' took the lead at 31.8 percent of the total cases, as if marriage were not the magical solution to all of life's problems.

Following closely behind were 'assault on women with intent to outrage her modesty' at 20.8 percent, 'kidnapping and abduction of women' at 17.6 percent, and 'rape' at 7.4 percent. Furthermore, the crime rate per lakh women population in 2021 was calculated at 64.5, representing a significant increase from the previous year's rate of 56.5 in 2020.

A total of 149,404 cases of crimes against children were officially registered, marking a substantial increase of 16.2 percent compared to the previous year, which saw 128,531 cases reported.

The notable increase in these cases points to concerning challenges in ensuring the safety and protection of children. The majority of these reported cases of crimes against children in terms of percentage distribution were attributed to 'kidnapping and abduction', accounting for 45 percent, and violations under the POCSO Act at 38.1 percent, which includes child rape.

These statistics underscore the vulnerability of children to these particular forms of crimes. Moreover, the calculated crime rate per lakh child population in 2021 rose to 33.6, marking a significant increase from the previous year's rate of 28.9 in 2020.

The NCRB data reveals deeply concerning trends in crimes against women and children. A 15.3 percent increase in registered cases of crimes against women, totalling 428,278, paints a distressing picture of women's safety in the region.

The fact that 'cruelty by husband or his relatives' comprises the largest chunk at 31.8 percent of these cases ironically debunks the idea that marriage is a magic wand that can make any problem disappear. This data underscores the urgent need for comprehensive measures to ensure women's safety.

Simultaneously, there is a 16.2 percent surge in cases of crimes against children, with a total of 149,404 cases registered in 2021. Notably, 'kidnapping and abduction' at 45.0 percent and violations under the POCSO Act at 38.1 percent, including child rape, dominate the statistics. This highlights the vulnerability of children to even sexual crimes.

The unholy intersection

While Indians, especially the deified Indian parents, do have a tendency to marry off all their problems, which reaches a new low with the passing of time, the marry-your-rapist practice is not exclusive to India.

Also read: Rape accused protected from arrest by Supreme Court, Whatsapp chats and stored photographs key evidence

According to the UN's annual State of World Population Report, 2021, as many as twenty countries continue to permit rapists to evade criminal prosecution by marrying their victims.

These countries include Russia, Thailand and Venezuela, where men can have their rape convictions nullified if they marry the women or girls they have sexually assaulted.

There was much outrage in 2021 when the Supreme Court, while considering a bail application, temporarily postponed the arrest of Mohit Subhash Chavan, a government employee accused of raping a schoolgirl when she was a minor.

During the hearing, the court posed a rather unusual question to Chavan: Whether he would be willing to marry the woman who had leveled the accusations against him.

The ominous exchange in the hearing included a rather casual question, "Will you marry her?". Lost to the simplicity yet ingenuity of the Great Indian Culture, which endeavours to take care of each stakeholder, this single question lit a fire among the 'incorrectly' educated masses of the nation who dared to ask if such a suggestion was even befitting of the highest court of the country which was supposed to deliver justice, something which only a few still crib about. Yet, nothing changed.

In July this year, the Delhi High Court expressed serious concern over a troubling trend where accused individuals had resorted to marrying rape victims in an apparent effort to evade criminal charges.

However, once legal actions had been mitigated, such as the quashing of FIRs or securing bail, these accused individuals had shockingly abandoned the victims they had purportedly married.

This pattern had been particularly disturbing when victims had become pregnant as a result of the assault, and DNA testing had confirmed the accused as the biological father.

Also read: Perpetrators of brutal crimes deserve no undue leniency: Supreme Court

Even after the marriage had been solemnised and the accused had gained immunity from criminal prosecution, they had callously deserted the victim within a few months. The court had brought attention to this disheartening situation, highlighting the exploitation of the legal system and the plight of these victims.

These are not one-off cases, and unsurprisingly, the offenders have become emboldened by the tone-deaf attitude of the Indian courts and have been increasing the utilisation of such escapades.

Why the Himachal Pradesh High Court Order is a welcome step

The decision of the Himachal Pradesh High Court was delivered by Justice Virender Singh, deciding a petition under Section 482 of Code of Criminal Procedure (CrPC), 1973 to quash an FIR registered against the accused for various offences, including the offence of sexually assaulting a child, as given under Section 4 of the POCSO Act.

In this case, the high court underscored after careful deliberation over the arguments and precedents that any compromise between the child victim, her parents, and the accused held no significance, especially in serious offences where the crime was against the State, not a private party.

The role of the complainant came to an end after initiating the legal process by informing the police. The court emphasised that its primary duty was to determine the truth of the allegations made by the complainant, the child victim and the witnesses.

The offences mentioned in the FIR were against the society, necessitating the continuation of proceedings to enable a competent court of law to ascertain the truth based on the evidence presented during the trial.

Accepting such settlements would have encouraged criminals involved in heinous offences to engage in similar activities and compromise with the victim, defeating the purpose of legislation such as the POCSO Act.

Also read: Married woman with children can't be said to have acted under false promise to marriage, says SC; acquits rape accused

The court cited Supreme Court rulings stating that the powers under Section 482 of the CrPC should not be exercised in cases involving serious offences such as murder, rape or dacoity.

However, since the POCSO Act offences were serious and against the society, the court found it necessary to refer the matter to a larger Bench, as per the Supreme Court's guidance, due to differences in opinions within the high court.

Are such compromises even legal?

Rape is a heinous crime with severe physical, emotional and psychological consequences for the victim. It is considered a crime against the individual, society and the State. It is strictly not a compoundable offence, and the Supreme Court has upheld the same over the years.

In Narinder Singh and others versus State of Punjab, the Supreme Court extensively discussed the powers conferred upon the court under Section 482 of the CrPC.

In that judgment, the Supreme Court also outlined the exceptions in which these powers under Section 482 of CrPC should not be exercised. The court clarified that such powers should not be exercised in cases involving heinous and serious offences characterised by mental depravity or offences such as murder, rape and dacoity.

These offences are not private in nature and have a significant impact on society. Therefore, the court should refrain from quashing proceedings in such cases, as they warrant a full and thorough investigation and prosecution due to their grave nature and societal implications.

Also, in Gold Quest International Private Ltd versus The State of Tamil Nadu, the Supreme Court reaffirmed the legal principle that it is not illegal to dismiss legal proceedings using Section 482 of the CrPC in conjunction with Article 226 of the Constitution. However, this principle does not apply when the nature of the offence is extremely serious, such as in cases of rape, murder, robbery and dacoity.

Also read: The two finger test: An old wine in a new bottle

Furthermore, in a recent judgment in The State of Maharashtra and another versus Dr Maroti S/o Kashinath Pimpalkar, the Supreme Court reiterated the objectives of the POCSO Act. The court emphasised that Article 15 of the Constitution empowers the State to create special provisions for the protection of children, and Article 39(f) mandates that the State's policy should ensure that children can grow in a healthy and dignified environment, safeguarding them from exploitation and abandonment, both morally and materially.

The court highlights that recognising these constitutional obligations and the need to address sexual offences against children inadequately covered by existing laws, the POCSO Act was enacted. The provisions of this Act aim to ensure that offenders of such heinous crimes against children are not let off lightly and should be appropriately prosecuted.

Finally, in the landmark judgment in the case of Daxaben versus The State of Gujarat, the Supreme Court delved into the role of the complainant in cases filed under the POCSO Act.

The court emphasised that when the high court exercises its power under Section 482 of the CrPC to quash an FIR or criminal proceeding, it must meticulously evaluate the nature and severity of the offence in question.

Specifically, the court highlighted that serious and heinous crimes, which have a significant societal impact and are not of a private nature, should not be quashed based on a compromise between the offender and the complainant or victim.

Offences such as murder, rape, burglary, dacoity and abetment to commit suicide are considered crimes against society and should not be subject to a compromise.

Furthermore, the judgment clarified the role of the complainant within the framework of criminal jurisprudence. Once an FIR or criminal complaint is lodged and a criminal case is initiated by the State, it becomes a matter between the State and the accused.

The State bears the responsibility of maintaining law and Order and prosecuting offenders. In cases involving grave and serious non-compoundable offences that impact society, the complainant or informant's role is confined to seeking justice through the conviction and punishment of the offender.

Also read: Rape is non-consensual sex. Period. 

The complainant does not possess the legal right to withdraw a complaint related to non-compoundable offences of a grave, serious or heinous nature that have implications for the society.

Why do such compromises need to be countered with an iron fist?

First and foremost, the protection of victims is a fundamental and unwavering priority within the Indian legal system. Allowing compromises, particularly in grave offences such as rape poses a significant risk of placing unjust pressure on victims.

Such pressure can originate from societal expectations, coercion, or victim's fear. Indian legal provisions steadfastly underscore a victim's entitlement to dignity, autonomy and a fair trial. It is essential to recognise that severe crimes are viewed as offences against society itself, leading to rigorous punishment. Thus, considering compromises in these cases could establish a dangerous and unacceptable precedent, potentially fostering further injustices.

The way forward

The legal recognition of compromises between victims and rapists, despite the presence of legal precedents and compelling arguments against it, points to a disconcerting reality. This issue goes beyond the mere question of legality; it lays bare the deep-seated misogyny and patriarchal notions deeply ingrained in our society.

In many instances, courts allowing such compromises inadvertently perpetuate a culture that discredits the severity of sexual crimes and disregards the physical and emotional trauma inflicted upon victims. These practices send a distressing message that the suffering of survivors is not of paramount importance and their quest for justice can be readily brushed aside.

The patriarchal norms that underlie such compromises often force victims into making unbearable choices. Victims, already burdened by societal expectations and stereotypes, may feel coerced to accept settlements against their true desires, further victimising them.

This not only hampers their path to recovery but also fosters an environment where perpetrators can exploit the vulnerabilities of survivors, making it even more challenging for victims to come forward.

The existence of such practices highlights the urgent need for a profound societal shift towards gender equality and justice.

Legal systems should prioritise the rights and well-being of survivors, emphasising deterrence and taking a firm stance against compromises, particularly in cases of grave crimes such as rape.

Such changes can help dismantle deeply rooted misogynistic and patriarchal structures, ensuring that survivors are heard and protected, and perpetrators are held accountable for their actions. It is a crucial step toward building a more equitable and just society.