How Do the Courts View Us: Rape, Marriage and Women?

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The directions shown to the nation and the world by the pioneer saint Shiromani Swami Vivekananda, more specifically marked in his words, “the best thermometer to the progress of a nation is its treatment of its women,” has been appallingly deviated without any justified rationale by the Hon’ble Chief Justice of India S.A. Bobde through his recent comments in the case of Mohit Subhash Chavan v. The State of Maharashtra & Anr on 1 March 2021.

India, which on one hand is itself revered as our beloved mother and which boasts of a rich history of valorous women like Savitribai Phule, Rani Lakshmi Bai and many others, on the other hand, is a silent witness to the marginalization of women. If truly the degree of freedom and respect given to women is a measure of a country’s progress, where do we stand as a nation? Considering the latest happening across the country, we do not seem to have come very far.

Background

Recently a rather bizarre exchange ensued in the Supreme Court concerning the security and rights of women in the country. On March 1, the SC was hearing a bail request of a government employee Mohit Subhash Chavan, accused of repeatedly raping a minor girl in 2014-15. This case came to light when the victim attempted to commit suicide. Chavan was thus booked under Sections 376 (punishment for rape), 417 (punishment for cheating), 506 (punishment for criminal intimidation) of IPC and Section 4 (punishment of penetrative sexual assault) and 12 (punishment for sexual harassment) of the POSCO Act, 2012.

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On 5 February, the Bombay High Court had set aside the atrocious order of the Sessions court granting anticipatory bail to the petitioner. This order of the Bombay High Court was challenged in the Apex Court.

During the hearing, the Hon’ble CJI questioned the petitioner if he would marry the victim who is now an adult. He further continued, “If you want to marry, we can help you. If not you will lose your job and go to jail. You seduced the girl and raped her. We are however not forcing you to marry her.”

Following this, Chavan’s lawyer reportedly informed the court that Chavan’s mother had “offered marriage” to the victim once she turned 18. However, the victim’s family refused the offer back then. Though, he could not marry the victim now as he was already married. To utter dismay, his arrest was stayed for 4 weeks thus allowing him to file for regular bail based on the assumption that he intended to marry the victim. What this essentially might signify to any average Indian is that the intention to marry the victim is a justifiable defence to rape.

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Even though in Shimbhu & Anr v. the State of Haryana in 2013, the Supreme Court itself opposed this widespread practice of considering marriage as an accepted solution to rape.

Public Reaction on the Comments

These insensitive comments by CJI Bobde caused widespread rage in the country and have been criticized and commented upon severely by various social activists and experts. Senior Advocate Meenakshi Arora observed that “The offence is rape and will still not go away. That’s an offence in rem, it is against the State and the public. Marrying the victim of rape does not take away that offence.

A group composed of several progressive, concerned citizens and thousands of women have even written a letter to CJI Bobde demanding him to resign stating that his comments scandalize and lower the authority of the Court and also imply that women lack the autonomy and personhood that men do.

Similar Comments Passed by the Courts in Such Cases

In a rape case in 2017, the acquittal of a high-profile filmmaker was based on the meaning of consent. The judge observed that “A feeble ‘no’ might mean a yes”. Last year in July, the MP High Court granted bail to a sexual offender based on the promise that he would protect her dignity further on and also request her to tie him a rakhi.

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Then, again recently, in Vinay Pratap Singh v. The State of UP, the court provided immunity from arrest for 8 weeks to the petitioner, accused of raping his partner, with whom he had been in a relationship for 2 years, on the pretext of marriage. In this case, the bench headed by S.A. Bobde remarked that if a couple is living together as husband and wife, the husband might be a brutal man but can an act of sexual intercourse between them be called rape?

Conclusion

There have been numerous such remarks by the court that highlight the need for gender sensitization among judges. These comments by such respectable authorities set an undue example for the general public and hinder the progress of our nation. Consequently, there is an imperative need to understand such nuances and rectify these issues at the earliest.


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