Forced Marriage As An Instrument To Escape Liability Of A Sexual Offence

In the case of Virendar Singh v. State of H.P the Himachal Pradesh High Court granted bail to a married man in a case of sexual offence registered for having carnal relations with a sixteen-year-old minor girl. Bail was granted because the accused agreed to marry the girl and the court concluded that the relationship was consensual.[ii] Similarly, recently the Supreme Court asked a man to marry a minor girl, whom he had raped to get bail and save his job.[iii] There has been another instance in the case of Aparna Bhat v. State of Madhya Pradesh where accused was granted relief on tying "Rakhi"[iv], following which a lawyer argued in the supreme court to allow women to tie Rakhi and acquit the accused in an offence of sexual assault.[v]

The question is whether these orders and comments from the highest courts of India go against the objective behind the enactment of the POCSO Act and other welfare legislations for women and children. The following section discusses the jurisprudence on prevention of sexual offences in India, especially regarding the POCSO Act and the prevention of child marriage in order to determine the legitimacy of such orders as those mentioned above.

Is Marriage the end-all of sexual offences against minors?

Allowing a person accused of sexual assault or rape to marry the victim and making marriage a way to escape liability for heinous offences is not acceptable in a modern society. Sexual offences against children fall under the category of the most heinous crimes, and marrying the victim to avail bail defeats the intention of reformation of victims as enumerated in the provisions of Protection of Children from Sexual Offences (POCSO) Act, 2012. It inflicts unwarranted suffering on the victim, who has to live with the consequences of a crime which results in grave injustice to him/her. On marrying the victim, any subsequent rape on the victim becomes legal under the garb of marital rape, which remains unpunished by law in India. One must ask, if the court punishes the man with a sentence of imprisonment in the final judgement, who is then to maintain and provide for his minor wife? All the mental trauma might also force the victim to withdraw the intention of seeking justice in any form. After all, the definition of a good wife in Indian marriages is a submissive woman. The good wife suffers silently, is forgiving for all the abuse in a patriarchal Indian marriage. The intention to punish and deter the criminal translates to punishment of the victim, and creates deterrence against filing complaints against sexual abuse.

The instance of Madhya Pradesh mentioned above has a couple of glaring problems. Firstly, the accused is already married. Asking him to take the minor victim as a wife is against law and social policies of Indian Government on many levels. Secondly, Hindu Marriage Act, 1955 declares the second marriage as void. It is also against the Prohibition of Child Marriage Act of 2006. UNICEF defines child marriage as marriage before 18 years of age and considers this practice as violation of human rights.[vi]

This mindset is disheartening to see when, on the other hand, there are so many policies being adopted by district collectors/SDMs to discourage families from child marriages, such as Counselling centres, societal intervention[vii] etc. When the Hon'ble courts come out with orders that allow bail on marrying the victim, regardless of age and plight, it fails the progress being made by such local level administrative actions. The reason behind this kind of "Khap Panchayat Justice" could be that the court still thinks that the dignity of a woman lies in her sexuality.

Justice DY Chandrachud observed in the case of Joseph Shine v. Union of India[viii] that a large chunk of society still thinks that dignity of a woman lies in her sexuality and states "A society which perceives women as pure and an embodiment of virtue has no qualms of subjecting them to virulent attack: to rape, honour killings, sex determination and infanticide. As an embodiment of virtue, society expects the women to be a mute spectator to and even accepting of egregious discrimination within the home. This is part of the process of raising women to a pedestal conditioned by male notions of what is right and what is wrong for a woman. The notion that women, who are equally entitled to the protections of the Constitution as their male counterparts, may be treated as objects capable of being possessed, is an exercise of subjugation and inflicting indignity." Forcing victims of sexual offences to marry their rapists highlight the conceptions of "chastity" and "honour" which have dictated the social and cultural lives of women for centuries, depriving them of the guarantees of dignity and privacy, contained in the Constitution.[ix]

The supreme court of India on behalf of four Judges in K.S. Puttaswamy v. Union of India[x], observed:

"The challenge in this area is to enable the State to take the violation of the dignity of women in the domestic sphere seriously while at the same time protecting the privacy entitlements of women grounded in the identity of gender and liberty."

Right to marry is a fundamental right as declared in Hadiya Case[xi]. Age of valid consent is 18 years as per section 14 of the Indian Contract Act. The reason for stating these two laws is to analyse the nature of marriages sought by the Supreme Court as a remedy to crimes against women and children. Forced marriage is still common in India, however now women do not succumb to these pressures and they like to choose their own spouses as evident in the judgment of Sanjeev Kumar v. State of Himachal Pradesh[xii] where a woman moved to court to get right to choose to marry declared as an essential ingredient of right to marry under Article 21.

In the present instance the age of the victim is below the age of valid consent, which makes her marriage voidable and has the option to nullify her marriage on attaining the age of 18, but the statistics highlights that only miniscule fraction of girls go out to nullify the marriage, the stigma surrounded around a divorced woman is strong. The Hon'ble Supreme Court in the case of Navtej Singh Johar v. Union of India[xiii], while overturning the judgment of Delhi high court in Suresh Kaushal case[xiv], declared that a fundamental right cannot be denied and even if there is a miniscule fraction of population which is affected, it will still be considered as a violation of a fundamental right. Thus, right to marry a person of one's choice could be considered as a violation when law officers force marriages of children.

Recently, the legislature has proposed its intention to raise the age of marriage for women.[xv] This reflects a concern over marriage at an early age and its effect the economy and socio-legal fabric of our country.

A criminological perspective will throw light on the nature of the punishments in the offence against children. The Juvenile Justice Act, 2000 is often criticised as opposite of what is provided on the POCSO. However, the difference is not as drastic as it may seem. The Juvenile Justice Act falls under the category of reformatory imprisonment and focuses on rehabilitation. On the other hand, POCSO is ridden with the stringent provisions which act as deterrent to the offenders. Both of the pieces of legislations are made to protect the welfare of children, and are complementary.

The Imrana rape case of 2005 where the village panchayat had forced a woman, who had been raped by her father-in-law, to void her marriage with her existing husband and marry her father-in-law and then treat her ex-husband as her son also exposes the fallacy behind the philosophy of Marry-the-Rapist. Interestingly, the court in the case refused to take a lenient approach and sentenced the abuser to prison for rape.[xvi]

Recently in Aisha Kumari v. State of N.C.T. of Delhi & Ors, the High Court of Delhi issued a notice to the government of Delhi to declare child marriage as Void ab initio because the petitioner in this case was being forced through verbal and physical abuse to marry a man when she wanted to study and take up a job to earn some form of financial independence.[xvii] The petitioner in this case relied on the doctrine of parens patriae by which the State is duty-bound to protect the interest and look after the well-being of children, particularly minor girls, who are most vulnerable.[xviii]

Reports of National Crime Records Bureau highlight that conviction in rape case happens rarely and the rate of conviction is abysmally low at 27.2 percent with 94 percent of cases.[xix] Even after all of this, when courts endorse marriage as an instrument to empathize with the rapists and blatantly ignore the trauma that rape survivors have to go through, without thinking of the impact of marriage on the life a minor victim, on her education, on her health and mental well-being, it drives us decades back and makes us question the relevance of progressive legislations and policies that are being made for the welfare of children and their well-being