This article is written by Priyanshi Soni, a student of Symbiosis Law School, Noida. This article seeks to highlight the effect of marriage on rape and how marry-your-rapist laws are being questioned in today’s time.
Codification of Indian Laws started in 1833 when the first Law Commission was formed under Lord Macauley, under the Charter of 1833. It was decided that the criminal law of the land will be divided into 2 codes – the Indian Penal Code, 1860, which was enforced in 1862, and the Code of Criminal procedure, 1861.
The present rape laws are considered to be too strict and biased towards women. Not only this, but the judgments delivered by courts in recent times also highlight a big issue of the coming of “marry-your-rapist” laws. Although these laws are not present in India, they are very much reflected in the mentality and decisions given by courts today. Such a law tries to absolve the heinous crime of rape. It is a serious concern as even the court at times becomes helpless as to whether they should interfere or not.
According to the UN’s Annual State of World Population Report, the Marry-Your-Rapist Law still exists. Countries such as Russia, Thailand, Venezuela allow absolving the accused if he agrees to marry the victim whom he assaulted. The law in Morocco was repealed following widespread outrage when a young woman killed herself after she was forced to marry her rapist. Jordan, Palestine, Lebanon, and Tunisia followed suit.
Rape laws in India
Rape is a very heinous crime prevalent in society. After the Nirbhaya case, many amendments were made to this law, including the term of punishment, changes in the Juvenile Justice Act, etc.
Section 375 of IPC defines “rape” as the act of sexual intercourse by a man on a woman without her consent or against her will. It is also considered rape when it is done with her consent but the consent obtained was with the use of force, fear of death, or hurt. Also, when she gives consent to the man believing him to be her lawful husband but in reality he is another man and that man knows this and still indulges in the intercourse, then it is said to be rape. Even when she gives the consent but it is due to unsoundness or intoxication or due to other reasons because of which she was unable to understand the consequence and the man indulges in sexual intercourse with her, then it is said to be rape. Protection is also given to the girl if she is below 18 years of age and indulges in sexual intercourse with or without her consent.
The exception to this Section is that when the sexual intercourse takes place between husband and wife, provided she is not below 15 years of age, then it is not rape. This is a controversial clause and lots of debate is going on regarding marital rape and around this clause.
Section 376 of IPC provides for ten years of imprisonment to life imprisonment to whoever commits the offense of rape.
Tuka Ram and Another vs the State of Maharashtra (1978) case led to widespread protests due to its controversial judgments. This led to the coming of the Criminal Law (Second Amendment) Act of 1983 which inserted a new Section 114A in the Indian Evidence Act of 1872 which stated that it shall be presumed that the victim did not consent if she states so. No further burden lies on the victim to prove that she did not give consent. Even the Supreme Court, in a number of judgments, has time and again held that the burden of proving that there was consent is on the accused and not on the victim. This applied to custodial rape cases. But, the application of this Section has been very weak at the end of the Court.
In the IPC, Section 228A was added which makes it punishable to disclose the identity of the victim of certain offenses including rape.
How effective are the rape laws in India
Due to public outrage, the rape laws are getting stricter with each amendment. In many countries such as Bangladesh, Pakistan, etc., harsh laws for rape exist, such as the death penalty. These laws, instead of being a deterrent, prove to be reducing the conviction rate. Many cases go unreported as the rapist tries to murder the victim in fear of getting punished. Even in many cases, the rapist is the one whom the victim already knows and so in fear of family embarrassment, the case goes unreported.
As per Section 375 of IPC, any male who does sexual intercourse with a female below 18 years, with or without her consent, is said to commit rape. There is a big loophole in this law as if someone below 18 years indulges in sexual activity even with consent, then also the man can be convicted of rape. This ignores the reality of sexual activity as in today’s time, many minors indulge in these activities and that too with their consent, and then the male gets punished without any fault of his. These laws are used mostly by the parents of young girls.
The only recourse available to women against marital rape is Section 498-A or the Domestic Violence Act, 2005. However, this only makes it a civil offense with a few civil remedies such as fines, protection, etc. Marital Rape violates the fundamental right to live with dignity under Article 21 and also the Right to Privacy regarding making sexual decisions. The distinction between married and unmarried women as per exception 2 of Section 375 of IPC also violates Article 14 insofar as the classification created has no rational relation to the underlying purpose of the statute.
“Marry-your-rapist” law in India
It is a kind of rape law depending upon the jurisdiction where the man who commits offenses such as rape, sexual assault, statutory rape, or other such crimes can be exonerated if he agrees to marry the victim. It is legal in countries like Bahrain, Syria, etc., but in India, no such concrete law exists to allow the same but the issue stems from deeper levels of societal and legal layers. Earlier, in old times, it was advocated that this law would protect the victim as well as the victim’s family from ignominy caused due to rape.
For example, in 2020, Orissa High Court granted bail to the accused under POCSO Act on the basis that he agreed to marry the victim. In another recent case, Supreme Court was hearing the bail plea of Mohit Subhash Chavan accused of raping a schoolgirl and so was charged under POCSO. He alleged that he was offered to marry the victim by the victim’s mother. There was a document made stating that the accused will marry the victim when she turns 18. He contended that when he refused to marry her, a case was filed against him. The Supreme Court then gave the option to him to marry her if he wants otherwise he will have to go to jail.
Cases of such sort highlight that there is a legal layer in India’s legal system as well, which supports the concept of marrying your rapist. Indian society has associated “rape” with shame and guilt and it considers the only way to shun away this shame is to marry their daughter to the one who raped her. They think that society will not look at their daughter with shame. This often undermines the will of the victim to fight and stand for justice. The victim is forced and made to believe that this is the only way and that fighting for this can even bring more embarrassment to the family. Thus, the consent to marry in such circumstances is mostly fabricated. These laws are being challenged and questioned heavily in the 20th century.
A new Act POCSO (Protection Of Children from Sexual Offenses) 2012 was made due to an increase in the number of crimes against children. This was gender-neutral and recognized all sorts of penetration and also included crimes such as child pornography, abatement to child abuse, etc. In a recent Madras High Court judgment related to the same, the accused was granted bail after impregnating a minor girl as he agreed to marry her. The FIR was filed under POCSO Act and the judge noted that if the accused fails to register for marriage then they will proceed against him as per the law.
What if the survivor herself wants to marry the accused, especially in the case of POCSO, or promise to marry? The main reasoning behind this is again, that the survivor thinks her lost reputation will be restored by marrying her rapist or will give her social acceptance. Her gendered conditioning assigns the act of loss of virginity as to traverse to eventual marriage.
Effect of marriage on rape
As per Article 21 of the Indian Constitution, the right to marry is a fundamental right of every citizen and the State and law cannot interfere with an individual’s decision to marry. So, as long as there is mutual consent between the victim of rape and the accused to marry, the court cannot interfere in the decision to marry or not. It is argued that courts can at least investigate if the consent is free of coercion, but it is said that investigation and marriage are separate things and courts cannot investigate into marriage.
It is the settled law that rape is non-compoundable offense i.e. non-negotiable in India. It was held in the Shimbhu v. State of Haryana (2013) that “rape is a non-compoundable offense and it is an offense against the society and is not a matter to be left for the parties to compromise and settle”. So, it can be said that in the cases of rape, there is no idea of a compromise that can be thought of. But, as we saw above in a recent case of the Supreme Court itself minimizing the punishment if the accused is ready to marry, shows that although marriage cannot completely waive the offense of rape, still the punishment can be said to minimize. This type of compounding of heinous offense is wrong, but if the victim herself gets ready to marry showing her consent, then the court remains with no evidence to convict the accused.
Albeit these judgments, the Kerala High Court decision in 2021 is a breath of fresh air as the court rejected the bail plea of a priest who was convicted of raping a young girl. Thus, it is clear that in cases where the charges of the rape have been proved, the Courts can and ought to take this recourse of blanket denial of marriage in such cases.
To conclude with suggestions, the grey area where the consent is given by the victim to marry the rapist, which is usually by coercion or fear, needs to be addressed by the courts. Although marriage is indeed a personal affair, if the marriage in question is regarding rape, then the investigation should be made allowed.
Recent guidelines given in this regard should be implemented accurately which say that the victim and the accused should not remain in contact, the victim should be protected, etc. apart from this, women NGOs should also keep themselves updated and interfere in these matters from time to time.
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