Bombay HC decision to stay criminal proceedings against man accused of raping minor wife disrespects rights of rape survivors

The Bombay High Court, exercising its inherent powers under Section 482 of the Criminal Procedure Code and Articles 226 and 227 of the Constitution of India, recently stayed criminal proceedings against a man accused of committing rape and sexual offences on his minor wife. The accused was charged under the Indian Penal Code (IPC) and the Protection of Children from Sexual Offences (POCSO) Act for raping the victim, whom he had married when she was 14. Interestingly, the court relied on an affidavit presented by the victim highlighting her consent to quash the FIR owing to “settlement” between her family and the accused. She also stated on record that she was willing to continue her marriage with the accused. The court found this “consent”, coupled with the accused’s promise to provide land and education to the victim, satisfactory to stay the ongoing criminal proceedings. [caption id=“attachment_5454681” align=“alignleft” width=“380”] File image of the Bombay High Court. CNN-News18[/caption] This, in its opinion, would best lead to the “welfare” of the victim. It would also take care of the probability that “nobody in society would be willing to marry her now”. The court ruled that this case cannot be used as precedent due its “peculiar circumstances”. The rationale for the said decision provokes umpteen questions in one’s mind. Child marriages, in the moral sense, cannot be put into the category of a ‘union’ as there is a glaring absence of free consent, knowledge and an informed choice. They tip the scales so that the younger spouse, generally the more dependent one, is forced to trust the other. This leads to younger spouses living their marital lives in muted acquiescence, accompanied by a loss of childhood and often, sexual abuse. In the instant case, to emphasise on an amorous conduct towards the victim, the accused reassured the court that she would pursue her education beyond Class 11 and be entitled to land. This explanation, however, fails to justify why someone facing allegations of grave sexual offences like rape should be allowed to ‘negotiate’ his way out of the crime. It would not be in the best interests of both, the victim and the public at large to accept this defence of character because it discounts the lingering effects of sexual abuse on the mind of the then child bride. Studies have proven that such victims constantly go through feelings of depression, anxiety and withdrawal owing to the realisation of being different. They also face difficulties in school and have trouble adjusting to circumstances which may seem unfamiliar post the psychological trauma they undergo. The Supreme Court in Parbatbhai Aahir versus State of Gujarat recognised these difficulties. It advised high courts not to, as far as possible, allow quashing of FIRs pertaining to offences like dacoity and rape, even if the victims initiated the settlements. Facts and “peculiar circumstances” of a case should not be allowed to undermine public interest, as this creates potential for misuse by the accused, who may induce the woman to settle the dispute. In the instant case, although it may be argued that the victim has consented to cohabit with her rapist as his legally-wedded wife, the gravity of the offences is such that to allow such cohabitation would be antithetical to the public interest. Victims of sexual offences often face this dilemma wherein the fear of not being socially accepted due to being a stigmatised ‘rape victim’ forces them to undertake settlement. What one can also take away from this case is the need to improve upon rehabilitation of victims of sexual offences. The intrinsic feelings of alienation that these victims go through can only be tackled through a proper system of rehabilitation. Justice isn’t served merely when punitive measures are taken against the accused, but is truly served when the victims are able to live a life of dignity and respect, just like any other protected individual in society. It is when one looks past the existing stigmas and positively participates in combating them that the victims are able to overcome the boundaries set by the existing social constructs. Though the proceedings in the instant case have been stayed and not quashed, the underlying premise behind such reasoning is that the future conduct of the husband can override his past conduct of raping a minor. This, in essence, is antithetical to the State’s duty to safeguard a woman’s dignity. Downplaying the past conduct of the accused, in anticipation of possible “good” conduct in the future inevitably disrespects the rights of the rape survivor. Should amicable conduct tomorrow be enough to look past yesterday’s wrongs? The authors are second year law students at Maharashtra National Law University, Mumbai