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No law in the country recognises enabling the rapist to walk free after marrying the survivor. However, in reality, it is something that families and communities often push for.
In the same week where the Delhi High Court on Wednesday, 11 May, saw a split decision on the constitutionality of the marital rape exception, another equally reactionary decision was handed by a divisional bench of the Supreme Court when they set aside the conviction and sentence of a man who had repeatedly raped his 14 year old niece
The facts of the case are simple. The accused, K Dhandapani, enticed his 14 year old niece with the promise of marriage and raped her several times. The family came to know of the offence when the girl became pregnant, and a case was lodged against him under the Protection of Child from Sexual Offences (POCSO) Act, 2012. After trying his case, in 2018, the Sessions Court found him guilty on all three counts, and convicted him and sentenced him to 10 years rigorous imprisonment. The accused appealed to the Madras High Court which upheld the conviction and the sentence in 2019.
The girl gave birth in 2017, before the case came up in court. Despite the pending case against him, he continued to have sexual relations with the girl, and she gave birth to her second child at the age of 17.
K Dhandapani filed an appeal with the Supreme Court stating that he had started a physical relationship with the 14 year old child on promise of marrying her and since he subsequently married her and was taking care of her and their two children, the case should be dismissed.
The counsel appearing for the State in the Supreme Court, argued that since the girl was only 14 years old at the time of the first offence, and since both the children were born before she turned 18, the marriage was not legal, and that it might well have been entered into only for the purpose of escaping punishment. After listening to the testament of the rape survivor where she insisted that she was indeed happily married, Justices L. Nageshwara Rao and B.R. Gavai ruled that the Court cannot “shut its eyes to the ground reality and disturb the happy family”, and therefore set aside the conviction and sentence.
POCSO Act was brought on to protect minors from a broad range of sexual crimes ranging from penetrative sexual assault to sexual harassment. The accused was convicted on three counts of penetrative sexual assault on a minor- (a) for making her pregnant, (b) for committing the act repeatedly, and (c) for committing it despite being a relative by blood- and given the nature of the crimes should be subject to the strongest punishment. Even in the appeal, the accused admitted his guilt, so there was no basis for dismissing the case.
The accused petitioned that he has subsequently married the girl, and so the case should be dismissed. At the time of pregnancy and delivery, the child was below the age of 18, which is the legal age of consent and marriage. Any marriage that may have taken place then is not legal, and therefore cannot be used to dismiss the order.
However, the most dangerous precedent is of the rapist using the offer of marriage to escape being punished for his crime. Once the court starts accepting this excuse, there is fear of it becoming a norm, and of rape survivors being coerced to marry the rapist in order to avoid the stigma of the rape and subsequent pregnancy.
Every rape survivor is subject to immense physical, mental and psychological trauma, but in a patriarchal society like India, rape is stigmatised to such an extent that the survivor is additionally made to feel that she has “lost her honour” by “allowing herself to be raped”. Playing on this fear of bringing dishonour upon herself and her family, the rapist often offers to marry the survivor, thereby reducing the stigma of pregnancy. The survivor is often coerced by the law enforcement agencies, the larger community and her own family into going through with the marriage, in order to reduce the stigma of pregnancy, even though it is in no way the fault of the survivor.
No law in the country recognises enabling the rapist to walk free after marrying the survivor. However, in reality, it is something that families and communities often push for. Once the match is formalised, the survivor drops the case, thereby enabling the accused and even convicted rapist to evade punishment.
While this takes place informally, by putting aside the conviction and punishment, the division bench of the Supreme Court has set a dangerous precedent which can be used by rapists in future to evade punishment. This will offer greater impetus to the rapists to put pressure on the survivor and her family to “reclaim her lost honour”, by taking up the offer to marry the rapist. While the rape survivor may escape the stigma that clings to her through no fault of hers, she will be forced into a permanent conjugal relationship with the man who caused her immense trauma.
Many individuals and organisations who work with rape survivors have said that it is inhuman and unacceptable to coerce the rape survivor into marrying the perpetrator. They recognise that such marriages may continue to be physically and mentally abusive, and far from getting justice, the survivor may end up in a situation from which there is no escape for them. They have called for strong legislation that declares such marriages illegal- though the rape survivor is free to marry anyone she chooses, her marriage to the rapist cannot be used by him to seek a reduction in punishment.
In the absence of adequate legislation, however, communities will continue to believe that by offering to marry the survivor, the rapist is atoning for his mistake, and the survivor will be coerced to accept the offer.
In the short term, it is imperative to define strict processes to track the marriage for a few years to ensure that the marriage was not entered into only to evade punishment. Women’s organizations should be tasked with speaking to the rape survivor to ascertain that she is entering into the marriage through her own will, and not because she is being forced to do so. More importantly, there need to be follow up meetings to monitor her mental and physical well being.
In the long term, what is needed is to provide sufficient financial and emotional support to the rape survivor to ensure her proper rehabilitation and to enable her to live an independent life. This will reduce her economic and emotional dependence on her family and her community, and will empower her to take decisions which are best for herself.
In parallel, law enforcement personnel should be adequately trained, so they recognise that the best interests of the rape survivor can be met, not by marriage to her rapist, but by ensuring timely justice.
Most importantly, there should be a concentrated awareness campaign to shift the blame from the rape survivor to the rapist. As long as the woman continues to be blamed for something that is not her fault, society will continue to consider marriage as a viable option to evade punishment.
Image source: a still from the film Benaam Badshah
Natasha works in the development sector, where most of her experience has been in Education and Livelihoods. She is passionate about working towards gender equity, sustainability and positive climate action. And avid reader and occasional read more...
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