Tag Archives: marriage

Marriage cannot amend statutory rape


RAPE COPY_0_5_0_0_0_0_0_0_0_7

A rape convict, serving a 10-year sentence was granted relief by Justice Devadoss of the Madras High Court, after the victim from the Irula community, whom the convict married and had a child with, requested the judge to reduce the sentence. The Judge, saying justice had to be tempered with mercy, reduced the sentence to the term already spent in jail. ‘The majesty of justice lies in its magnanimity,’ said the Judge.

Earlier, Justice Devadoss had granted bail to an appellant who was convicted of statutory rape of a minor girl, 15 years of age,  slapped up with a 2 lakh fine and a 7 years prison sentence by a Sessions Court in order for him to settle the dispute by mediation.

The Apex Court, in Gian Singh v. State Of Punjab & Another, has explicitly stated,  “Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences.Therefore, the Honourable Judge, in both the orders quoted above, is flying in the face of express reasoning of the superior court, with several resultant and avoidable aftershocks, both to the victim and to gender justice.

Rape is a grave offence and is non compoundable. After conviction the only option before the said Judge is to decide on the merits of the case before him. Even if mediation takes place and the appellant marries the victim, he would still be facing a jail term unless the appeal is decided in his favour. By insisting on mediation after conviction the Honourable Judge is in fact saying that the appeal would be decided not on the merits of the case but the decision is contingent on the marriage to the victim. This reasoning is completely in opposition to women rights and gender justice and denies the woman a true remedy. This is especially so in the light of the fact that Rs. 2 lakhs, has been imposed as a fine on the offender which would be paid to the victim as a compensation. If after the marriage the offender abandons the victim, she will again have to approach the Court for maintenance as solace, albeit meagre.

In the first  case, the survivor has married the perpetrator, we do not know if she has been forced into it by faulty social constraints of being a tainted woman if exposed to sex out of marriage, or because she was pregnant as a result of the rape. This unhealthy Hobson’s choice for a rape survivor should not be encouraged as it will lead to perpetrators marrying the victim to get out of a jail term and then abandoning them. Yet the judge chooses to encourage it , terming it magnanimity, without considering or being aware of the social consequences. In the second case,  the survivor has issued a public statement that expressly conveys that it is against her will, to reconcile the crime of rape with her rapist, in exchange for marriage. Therefore it is inappropriate that the judiciary should assume the role of the quintessential patriarch and condemn the survivor to the fate of accepting the rapist’s hand in marriage as a peace offering, to emancipate her from the graver trials of bearing the cross of being nobody’s wife. In allowing this decision, the High Court is effacing the autonomy and agency of a single woman, her right to a partner of her choice and to be the authority where her body is concerned.

So the question to be asked here is, to whom is the judge showing mercy- to the offender who is guilty o f grave violence and not to the poor survivor, who had no choice in deciding on having a  child, who was forced by social convention to marry a violent man and forced by society to petition for his release.

The two cases set  bad jurisprudential precedents as convictions in rape cases despite amendments in law in favour of victims are few and far between them due to bad investigation, judicial caution and cultural gender prejudice. If this order is allowed to continue to its logical course, then even the few Judges willing to convict the rapists will be hesitant to do so and mediation will become the norm in such cases.

Mediation in cases of gender violence and grave crimes must be discouraged. Victims who come forward to give complaints against offenders under conditions of grave social stigma and discouragement hence the victims will not be in an equal position to negotiate during mediation. They will be facing pressure from the lawyers of the offenders, mediators and in some cases from their own family members “to settle the case rather than pursuing it in Court and such settlement in sexual crimes is generally presented as marriage to the perpetrator exposing them to grave personal danger due to factors such as revenge as well as abandonment, harassment etc. Therefore mediation is not the solution even from a social point of view for sexual offences.

This reference to mediation has exposed the survivor to harassment as she is constantly being threatened by the police to appear for mediation where the appellant will be present as he has been enlarged on bail. Hence the victim has to relive the whole trauma of the incident and come up with super human efforts to resist the coercion of the appellant to marry him since the marriage is an advantage to the appellant which will be a forced marriage which in effect the Honourable Judge is facilitating.

Several lawyers and eminent jurists as well as the public have spoken out against the  reference to mediation but within two days, there has been another news report about the reduction of sentence in another rape case. The High Courts word is the law and lower courts are bound by it, they are also bound to follow the High Courts lead. It would be a poor day for women if  the rape law is diluted by the effect of   judicial decisions.                     

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Bracketing Desires


 

BRACKETING  DESIRES

My mother-in-law’s ex –nurse had a problem and came to me. Her daughter had been seeing a man for the past ten years and now he was marrying a girl traditionally earmarked for him- his niece. She was willing for him to marry her first and then marry the other girl. I told her the legal provisions including the provisions that make promising marriage and reneging, an offence. I sent her to a local women’s organization, who promised to help and that was the last I heard of it, for some time.  She was back a few days later. She did not go to the organization, because she felt they would counsel her against marrying the guy and would take a confrontational stance. Instead, she went home to think it over. She had managed to prevent her brothers from manhandling her boyfriend who was cravenly switching off his mobile, but he had dragged her to the police station, where they made her a sign a statement that she would not cause any trouble! Now her blood was up and she had realized that he did not want to marry her. Since the station was out of city limits, I asked her to go to a local lawyer, especially as she persisted in the hope that her boyfriend would turn round at the eleventh hour and marry her. My advice to abandon the scheme since a reluctant husband or a shotgun wedding would be difficult to sustain fell on deaf ears since even the parents wanted only a ‘respectable ending’ to the whole affair.

In ‘ Well done Abba’, Sakina’s mother, a widow, agrees to her daughter ‘marrying’  an old Sheikh from the Middle East, because of the cash he can give her, for the family’s sustenance, only to have her dreams come to naught when she is beaten and sent home. The dowry system has reached out its tentacles to all communities and our office has handled cases among Muslims as well. The Mahila Court sees several ‘suspicious’ deaths tried as dowry deaths everyday. The system goes on, regardless.

Which his why, I wonder, when we talk about our high regard for the family as a nation. Some years ago. I was visiting Warwick, when a professor told me that some Indian judges had visited. She laughingly added the rider that one of them had lauded Indian ‘family values’. She said she was surprised, since she had read so much about dowry deaths, domestic violence and even forced marriages among Indians. She wondered which values we were lauding. She said that while divorce and blended families might be the norm in Britain, dowry death was not. I could not, in all conscience disagree.

The other day, my friend had a slightly different complaint about families. She said that arranged marriage was becoming more difficult, because girls were demanding bridegrooms with very high salaries who owned flats. In the same breath she also told me about some young friends of hers, whose husbands appropriated their entire salaries and did not ‘allow’ them even Rs. 100 to spend as they wanted. These women earned many thousands but had less control over their money than their own domestic workers! Small wonder girls nowadays do not want to marry and the family courts see more marriages coming apart!

When I visited New York , some years ago, I used to sit in a park, which the homeless had taken over. They seemed to be merry, but I noticed an underlying sadness. Walk through any slum and you will see only happy faces. People may fight with each other, but by and large, they know who they are. Even pavement dwellers have a roof over their heads, atleast until they are evicted. Most of the homeless in N Y slept in the open air and could only call a box their own. In the midst of plenty, the contrast is great indeed. My domestic worker disappears every few days. When she comes back, the reason for her absence will usually be a death, birth or marriage in her extended family. I have found that this family is very large and is flung over several villages. I used to pity her. She always moans about the expense of these trips but I have realized that this is just venting. If there were no such trips, she would be lost. It is the communal sharing which shapes her life and is missing among the poor in NY. So a family is an important thing. However, I think we have to consider how far individual aspirations can be encompassed and encouraged within the family. After all isn’t a parenthesis better than a full stop?