“Will You Marry Her?” It’s Not a Question that Should Be Thrown at a Rapist. Definitely Not By the SC

Sometimes, the Supreme Court of India makes judgments that are befitting to the Constitution and laws of the world’s largest democracy, where all citizens should be considered equal. However, on other occasions, the Court conducts itself not very different from a khap panchayat. While the rest of us have mercifully made it to 2021, Chief Justice SA Bobde’s shocking comments while hearing a special petition involving a charge of rape against a minor would pass off for something said back in the 1950s.

On trial is 23-year-old Mohit Subhash Chavan, a civil servant who stands accused of raping a girl five years ago, when she was sixteen years old. Charged under the 2012 Protection of Children from Sexual Offences (POCSO) Act, Chavan had already been convicted in the Bombay High Court. Chavan’s lawyer tried to contend that his arrest would cost him his job, and therefore he should be granted protection. CJI Bobde responded that as a government worker, Chavan should have thought about this contingency before he committed a crime. Still, that didn’t stop the CJI from offering Chavan a plea deal: “Will you marry her?”

The question alone is enough to discourage any sexual assault survivor from seeking out a legal remedy, in case it should end in her having to marry her abuser. But Bobde went on to make his meaning even more plain: “If you want to marry, we can help you. If not, you lose your job and go to jail. You seduced the girl, raped her.”

Seduction is certainly watering down the allegations against Chavan. The survivor claims he stalked and harassed her since she was in the ninth standard, and as he was a relative of the family, he would often come to their home. She alleges that Chavan entered the house from the back door while her parents were out of town, gagged her and bound her, and raped her. Chavan then coerced her to keep her silence, she recounts, threatening her with harming her family and throwing acid on her. He would continue to stalk and rape her between 2014 and 2015. When she attempted to file a complaint, Chavan’s mother insisted that the two could marry, and Chavan promised her the same, she says.

For women and girls across the country, the girl’s statement sounds like a waking nightmare. So isn’t the suggestion of marriage by the highest court in the country simply outrageous? To the credit of the judiciary at large, the Bombay HC had earlier condemned Chavan receiving anticipatory bail by a Sessions Court in the strongest terms, calling the judgment “atrocious”. At the time, Justice Mangesh Patil overturned the order, expressing grave concerns about the Sessions Court’s competence and lack of sensitivity.

Sadly, the SC is not unique in prescribing marriage as a solution to rape.

Unfortunately, Justice Patil’s misgivings are today shared by the nation’s women. CJI Bobde did not even stop at that. In another case today, a UP woman accused a man of rape after a live-in relationship where he had allegedly pretended to marry her, then married someone elese. Bobde remarked, “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 a rape?”

What, then, would be considered rape in India? Clearly, the crime as defined by the law holds little weight if the accused can get away with simply marrying their victim. Sadly, the SC is not unique in prescribing marriage as a solution to rape. Courts across the country have made this a standard practice for various reasons. Rape accusations are often levied by parents who object to consensual relationships, and the couples involved have a desire to marry anyway. Cases based on false promises of marriage, like the couple from UP, are also common. National Crime Records Bureau data from 2018 records 12,568 such reported rape cases. In 2017, it registered 10,553 cases under the “known persons on promise to marry the victim” rape cases, according to a report in Article 14.

But a large subset of marry-your-rapist rulings are made when the victim falls pregnant as a result of the assault, or when she gathers the courage to approach the police, the courts, and society at large. At that point, pledging to “care” for the victim is often considered a way to cancel out the crime — in which case, women might well wonder what is the point of having sexual assault legislation in the first place.

As the SC’s statement exemplifies, the problems don’t necessarily lie with the laws. Rather, rape is still considered an act of social dishonour against a woman and her family, instead of an outrage of her fundamental rights to safety and freedom. Women don’t just exist in the context of daughters, wives, and mothers. The sooner the judiciary realises that women are full individuals who deserve to make their own decisions under the protection of the law, the sooner survivors can escape the court-sanctioned horror of being tied to their rapists for life.