No Indian Judges, Marriage Is Not The Remedy To Sexual Abuse

TW: Mentions of Sexual Abuse and Rape

On July 30 2020, the High Court of Madhya Pradesh delivered a bizarre order involving a woman who had registered a criminal complaint against a man for sexual harassment. The Court granted bail to the accused on the condition that he would visit the complainant and request her to tie a ‘rakhi’ with a “promise to protect her to the best of his ability for all times to come.” In addition to paying her eleven thousand rupees as a “customary ritual”, the Court also asked the accused to pay up a sum of five thousand rupees for the woman and her son. Although the case was that of molestation, the judge seemed unfazed by the fact that the perpetrator could walk free if he vowed to transform himself into the woman’s “protector.” And when viewed within the larger scheme of things, it reaffirms a troubling narrative pushed forward by Indian judges while sentencing perpetrators of sexual abuse.

Also read: ‘Where Is The Evidence?’ – A Queer Survivor On The Death Of Justice Due To Voyeuristic Law

Silencing Survivors With Prejudiced Characterisations

In India, survivors of sexual abuse are no strangers to sexist and misogynistic remarks made by courts. Most recently, a judge from the Karnataka High Court faced severe criticism for referring to the conduct of a rape survivor as “unbecoming of an Indian woman”. In the past, there have been many judgments that have perpetuated patriarchal notions and gender stereotypes while interpreting issues of consent, analysing evidence and sentencing abusers, particularly in rape trials. Past decisions have arbitrarily focused on extraneous factors – the previous sexual conduct of the survivor, her relationship with the accused, and aspects of her social life. In this context, one of the most shocking trends is when judges pass lighter sentences or even acquit perpetrators by encouraging compromises either in the form of marriage, good relations or lasting ties between the survivor and abuser. This seems to indicate that a marriage or relationship proposal can be used by the accused as a good enough alibi to erase all notions of violence.

In Kerala, a rape convict priest Robin Vadakumchery also recently attempted at an exception by expressing his wish to marry the survivor and “take care of the child born to her” during a hearing in the Kerala high court.

Marriage As A Mitigating Circumstance

In a case where a fifteen-year-old girl had been raped and impregnated by her neighbour, a Madras High Court judge released the rapist on bail to allow him to attend a “mediation” with the survivor. The judge who was later forced to revoke the order was concerned that the survivor was “nobody’s wife”, “an unwed mother” whose child will soon be a victim of “social stigma”. The judgment thus reinforced rape myths that cannot perceive a woman leading a dignified life separate from her abuser and that which constructs moralist notions around her chastity.

In a case from 2005, popularly known as the Imrana rape case, a village panchayat had forced a woman who had been raped by her father-in-law to void her marriage with her existing husband, marry her father-in-law and then treat her ex-husband as her son. Interestingly, the court in the case refused to take a lenient approach and sentenced the abuser to prison for rape. 

As per the latest report of the National Crime Records Bureau, conviction rates in rape cases are abysmally low at 27.2% with the offenders in 94% of cases being someone known to the survivors. Despite this, courts continue to endorse marriage as a remedial measure for sexual assault, not only dismissing the physical and mental trauma borne out of sexual abuse but also blatantly disregarding a woman’s independent existence and her right to bodily autonomy under Article 21 of the Constitution. Judges seem to fixate on