Reading time : 10 minutes
As the question “Will you marry her?” was posed before a 23-year-old man accused of raping a girl by the Supreme Court, the result was aggression, condemnation, and perhaps misunderstandings as the Court said in its defence but a spark of discourse addressing the deeper issues related to victims marrying the rapist has definitely found its space in society. This is not the sole incident. In 2005, the sessions court of Delhi, took up the offer of the rapist who had gouged out the eye of the victim that he should be allowed to marry her and thus, the judgment was delayed. In 2015, Madras High Court granted bail and referred the case to the mediation center for the arrangement of marriage between the rapist and the victim who was just 15 years old when the crime was committed. In 2020, Orissa High Court ended up granting bail to a rape accused under Protection of Children from Sexual Offences (POCSO) for marrying the victim who had now attained the age of adulthood.
These incidents are reflections of ‘marry your rapist laws’ which are defined as laws that exonerate heinous crimes like rape, sexual assault, statutory rape, abduction, or other similar act if the accused offers to or marries the victim, depending upon different jurisdictions. It is legal in countries like Bahrain, Syria, etc. where the accused often abuse these laws to avoid the punishment and later end up abandoning the victims. In India, there are no laws per se that allow the same but the issue stems from deeper levels of societal and legal layers.
THE SOCIETY AND THE VICTIM
Indian society has associated the words ‘rape’ with ‘shame’ but ironically, for the victim. The deep-rooted patriarchal notions that women need the protection of men and the ultimate goal of every woman’s life is marriage are still prevalent. The honor of a woman lies in virginity and chastity and it is the most prized possession of hers. These prejudices aggravate in cases of rape resulting in pregnancy. No one would marry a rape survivor or the child would be bereft of the protection of the father are the main concerns of the society which often forget to take into account the victim herself and her aspirations.
The family members, relatives, people from village panchayats often pressurize the victims by threatening, shaming, and gas-lighting which ends up as victims yielding to the marriage to their perpetrators even if they are reluctant to do so. The father of a victim-survivor married her daughter to the rapist quoting “having no other choice” and “her whole life would have been ruined and we would have to put up with the embarrassment forever.” This attitude of shame and embarrassment accompanied with victim-blaming by closed ones as if they were responsible for inviting the attacks themselves, often results in undermining the will to fight for justice. Even if the victim wants to refuse the offer of the marriage, they are unable to do so. The victim is made to believe that the two minutes of courage before the Courts are not comparable to a lifetime in the same society which is going to hold her on the pedestal of being a rape survivor forever. Thus, the consent to marry before the Court is often fabricated.
The Courts are aware of this pressure. The judges are often seen to invite victims to their chambers in such cases. One of the case where the victim was called to tell the truth, she admitted that even though the crime was actually committed, she wanted to withdraw her complaint and marry the accused because of the family pressure otherwise if the guilt was proved, her chances of marriage would be affected. Essentially it meant that she would not be considered a ‘chaste woman’ eligible for marriage in the society. But more often than not statements like “a girl, whose virginity is at stake, not uttering a single word to her own parent or before the Court regarding the alleged incident, is an astonishing conduct which speak volumes about the ingeniousness of the prosecution story”  by the Courts themselves often end up contributing, even unintentionally, to the same self-destructing thought that the society has been conditioning in the minds of women and feminists have been trying to fight against, since the time immemorial.
THE COURTS’ DILEMMA
There is no straight jacket formula as to the circumstances that may lead to marriage between the rape survivor and the rapist but they can be classified broadly into three situations: one where the relationship was consensual but the family is not approving of the relationship, thus, the man is accused of rape and they end up marrying each other during the course of the trial. Second, where the perpetrator engage in sex with the victim after a false promise to marriage that they do not honor. The cases are filed, the perpetrator is remanded to either police or judicial custody and this ends up either in marriage or monetary settlement after behind the scenes deliberations and flipping of statements by the victim. Then the third category of rape cases where pressure by family and society leads to marriage between the victim and the rapist. It is these cases where the Courts face a lot of dilemmas.
Since the Indian courts themselves do not have the power to suggest the marriage between the victim and the offender under the contemporary statute, in cases of rape, the offer of marriage is made by the rapist to the victim side. Because of the pressure, the victim agrees. Despite all the efforts, interrogations by the court, the victim though coerced, is adamant to admit that she is marrying on her own will. The first issue that arises is can the courts transgress into the personal matters like marriage between the parties? If yes, till what extent? The second dilemma encountered by the Courts, following these questions is if a blanket denial in all cases where the victim agrees to marry the rapist should be allowed?
The right to marry a person of one’s choice enshrined in Article 21 is a fundamental right given to the citizens of India. It was held in Shafin Jahan v. Asokan K.M. and others that “neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters. They form the essence of personal liberty under the Constitution.” The courts are very clear that no law can restrict the choice of partner of any citizen within India albeit the partners are consenting adults. As long as there exists mutual consent between the rape survivor and the rapist to marry, the courts cannot interfere with the decision. One safeguard could have been that the Courts investigate into the ‘free consent’ of the victims in such cases as to make sure that the consent is free from any coercion. But it was observed while answering the issue of can the courts look into the free consent of two adults willing to marry that “marriage and investigation are two different things. As far as marriage is concerned, it does not warrant any investigation. Investigation has nothing to do with it.” Thus, courts end up sanctioning such marriages as there is little to no scope to interfere in such cases.
Elucidating upon the idea of blanket denial of marriage in such cases, it is the settled law that rape is non – compoundable offence i.e. non-negotiable in India. It was held in Shimbhu v. State of Haryana that “rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle”. The court also summarized the penal provision as “punishment should always be proportionate/commensurate to the gravity of offence. Religion, race, caste, economic or social status of the accused or victim or the long pendency of the criminal trial or offer of the rapist to marry the victim or the victim is married and settled in life cannot be construed as special factors for reducing the sentence prescribed by the statute.” Further reiterating the same in State of M.P v. Madanlal, it was held, “we would like to clearly state that in a case of rape or attempt to rape, the conception of compromise under no circumstances can really be thought of.”
But there are numerous instances where the marriage offer has directly or indirectly exonerated/ minimize the punishment in rape cases. The very recent words of the Chief Justice of India to a rape accused were: “if you want to marry, we can help you. If not, you lose your job and go to jail. You seduced the girl, raped her.” Interpreting these words, receiving punishment and marriage were given as alternate options. In other cases, the offenders are often given bail to marry the victims like Bombay High Court granted one to the accused of raping a minor. These decisions feel no less than compounding of the heinous crimes like rape, contrary to the criminal jurisprudence of the country.
After analyzing the laws in personal sphere as well as the recent judicial trends, the possibility of granting a blanket denial in such situations becomes grim. Especially in cases where the victim flips her statement to withdraw the complaint due to family pressure to marry the accused. The court is left with no evidence whatsoever to convict the accused. Thus, the reason to question the marriage itself gets abated. Amidst all the judgements, in 2021, Kerala High Court’s rejection of bail plea of a priest convicted of rape, to marry the victim came as a breath of fresh air. The court quoted the reason as “The trial court arrived at the finding that the victim was a child at the time of the incident. As long as the finding remains, allowing the bail prayer will amount to granting judicial approval to the marriage directly, indirectly, or by implication.” Even during the trial, the parents of the victim came forth with the suggestion of marriage but the trial court had rejected the offer confirming conviction of the accused. Even if the observation was made with respect to the minors, still it is a nascent step in a good direction. This ruling is in consonance with Madanlal’s Case where the court had earlier held,
“Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of sanctuary of error. We are compelled to say so as such an attitude reflects lack of sensibility towards the dignity, the elan vital, of a woman. Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility.”
Thus, it is very clear that in cases where the charges of the accused have been proved, the Courts can and ought to take this recourse of blanket denial of marriage.
The grey area which is the consent of the rape survivor to marry the rapist has to be addressed by the courts. While the interrogation in chambers of the judges has been helpful, it is not enough. While it is understood that the consent in the area of marriage is a personal affair of citizens but the marriage in question stems from a heinous crime. The courts are aware of the possibilities of societal pressure over the victims. Thus, investigation by the courts scrutinizing such consent should be allowed.
Sensitizing the masses through quality education, police and legal fraternity through training sessions is encouraged and recommended. The stigmatization and victim shaming of the rape survivors is the root cause of this problem. Marry the rapist has been a malpractice since a long time. The courts are aware of it but are often helpless keeping in mind the framework of the mindsets of people. It all boils down to the society’s mentality which is unable to accept that the life of a woman is more than her virginity, chastity and marriage. In this regard, recent guidelines of the Hon’ble Supreme Court in Aparna Bhat v. State of Madhya Pradesh prescribing seven key directions for courts to follow when bail orders are dictated is the right step in this direction. They prescribe that “bail conditions should not mandate or permit contact between accused and victim, should seek to protect the victim, not discuss the complainant’s behavior, dress, past conduct or morals and the complainant should immediately be informed about the bail order.”
The women activists and NGOs need to keep themselves updated and interfere when required in such cases. This would make victims feel they are supported and would less likely to fall to the pressure of the closed ones. The administration also needs to work with such survivors and ensure timely aids to prevent incidents similar to a 14 year old victim who was made to marry the person who had raped her and impregnated her in 2017 in Uttar Pradesh. The parents of victim being daily wage labors could not afford to financially look after them and their requests for financial aid from the administration were ignored as well.
Strict Implementation of the POCSO Rules, 2020 which stipulate that the victim is entitled to be kept away from the accused at all times, during the trial and otherwise and similar laws for all the rape victims are encouraged and suggested to minimize the collusion between the rapist and the family of the victim. And lastly, amendment and reforms to the current Criminal laws to include the blanket denial of marriage to the rape convicts is recommended.
Also read: Social Media : An Invasion of Privacy
Marry-your-rapist laws are barbaric and insensitive laws rooted into extreme patriarchal notions. India per se does not recognize this law statutorily but the practice itself is not foreign to the Indian society. The victim shaming and blaming often results into such peculiar situations where the victims are coerced into marriage with their own perpetrators. The societies that follow such notions are convinced that marriage to the one who offended the chastity of the woman is the only key to rehabilitation in the society. While the courts render rape survivors as helpless, it is ironic that they are not helpless by the virtue of their gender or the heinous crime that violated their bodily integrity but they are helpless in garnering support to fight for justice from the society. Also, the peculiar nature of marriage being a personal affair of the citizens, the Courts are often hesitant and cautious to transgress into this territory. They are very well cognizant of the existence of this problem but ultimately, they have to keep in mind the kind of society the victim has to return to. Sensitizing the masses, amendments in laws and better safeguards may mitigate this problem to a great extent but at the end of the day, it is the mental revolution in the society where people are ashamed of the perpetrators rather than victims and want to protect their daughters rather than the honor in her genitals would result into extinction of this inhumane practice.
 Are you willing to marry her?’ Supreme Court to rape accused By Abraham Thomas, available at: https://www.hindustantimes.com/india-news/are-you-willing-to-marry-her-supreme-court-to-rape-accused-101614646926673.html (Visited on March 20, 2021).
 We were completely misquoted on ‘will you marry her’ query, CJI says by Dhananjay Mahapatra, available at: https://timesofindia.indiatimes.com/india/we-were-completely-misquoted-on-will-you-marry-her-query-cji-says/articleshow/81389389.cms (Visited on March 20, 2021).
 Jolly, Stellina, and M.S. Raste. “Rape and marriage: reflections on the past, present and future.” 48 Journal of the Indian Law Institute, 277–284 (2006).
 Mohan v. State M.P No. 2/2014 in Crl. A No. 402/2014 (not reportable).
 Gyanaranjan Behera v. State of Odisha BLAPL No. 2596/2020 (not reportable).
 Bahrain penal code, 1976, art 353
 Syrian Penal code, 1949, art 508
 Vishwanath, Neetika, “The Shifting Shape of the Rape Discourse.” 25 Indian Journal of Gender Studies 1-25 (2018).
 Lillu Rajesh and others vs State of Haryana (2014) 8 SCC 913. 30.
 Gangoli, Geetanjali, International Approaches to Rape, 101-120 (Bristol University Press, Bristol, UK, 1st edicition, 2011).
 Supra note 3 at 1.
 Barn, Ravinder, and Ved Kumarii, “Understanding complainant credibility in rape appeals: a case study of high court judgments and judges’ perspectives in india.” 55 The British Journal of Criminology, 435–453 (2015).
 Indian woman marries her alleged rapist, available at: https://www.bbc.com/news/world-asia-india-31483956 (Visited on March 20, 2021).
 Nipun Saxena v. Union of India,2018 SCC OnLine SC 2772
 Supra note 12.
 Swami Chinmayanand Alias Krishna Pal Singh v. State of U.P. (Criminal Misc. Bail Application no. 44814 of 2019)
 How India’s Rape-Survivors End Up Marrying Their Rapists by Poorvi Gupta, available at: https://www.article-14.com/post/how-india-s-rape-survivors-end-up-marrying-their-rapists (Visited on March 20, 2021).
 Supra note 9 at 1.
 Shafin Jahan v. Asokan K.M., 2018 SCC OnLine SC 343.
 Shimbhu v. State of Haryana (2014) 13 SCC 318.
 State of M.P v. Madanlal (2015) 7 SCC 68.
 Supra note 1
 Man accused of rape gets bail to marry victim by Kanchan Chaudhari, available at: https://www.hindustantimes.com/mumbai/man-accused-of-rape-gets-bail-to-marry-victim/story-41ugEYcStxcowaTroeDMkN.html (Visited on March 20, 2021).
 Kerala HC rejects priest’s bail please to marry woman he is convicted of raping by Ramesh babu, available at: https://www.hindustantimes.com/cities/others/kerala-hc-rejects-priest-s-bail-please-to-marry-woman-he-is-convicted-of-raping-101613547180881.html (Visited on March 20, 2021).
 Aparna Bhat v. State of Madhya Pradesh MANU/SC/0193/2021
Author: ANUSHA JAIN
Editor: Kanishka Vaish, Senior Editor, LexLife India.