Marrying the Rapist – Justice to Women?
Introduction:
Dealing with the crimes gets categorized into various forms and causes aches to every individual when they fall as a victim. Among various crimes, a common term and a most prevailing crime is “rape”. There lies no pride when history is dealt with because every age and every period the earth faced a crime of rape with various punishments. Each age codified some sort of punishments for the crime, even now there lie different punishments in different places such as immediate death in one country, imprisonment, etc. apart from these the history of rape has a sort of remedy that is granted to the accused by way of marrying the victim. Though such remedy stands to be invalid for a criminal offense its traces stay in some nooks and corners. This act of granting remedy though not given as a judgment in the court became a trend as “Marry your Rapist” in India by the statement pronounced as a suggestion by the Hon’ble Chief Justice of India S. A. Bobde which was reported on 01st March 2021 by the media. Yes, the act of marrying the rapist still holds the planet under the shadow of unawareness, loss of prestige, threat, etc. we can state that such an act still plays its role but not dominantly and virally. The discussion below deals with the practice of such a remedy, the reason for its survival, etc.
Facts:
As stated above this hidden practice was suggested and was brought to light through the case of Mohit Subhash Chavan v. the State of Maharashtra. The Supreme Court here raises a suggestion as a remedy to the criminal, whether he can marry the 16-year-old victim? This directly exposes that the criminal gets a choice of either to accept the marriage or go through punishments for such offense. The crime took place in the year 2014 – 2015 and reached the court for its final judgment currently. Though such a statement didn’t attain its goal, the common people of the nation are aware of such a situation prevailing in a hidden manner through the suggestion pronounced. When dealing with the facts the person who committed the offense is a government employee who raped a minor girl in the year 2014 – 2015 at the age of 16. It was contended that the rape was committed with the consent, permission of illegitimate mother, etc., but the act was marked as an offense. At present, it was applied for receiving bail such that the job of Mr. Mohit does not gets vacant.
Laws in other nations:
Kuwait:
Among many other nations which had a law that allows the act of allowing the rapist to marry the victim, Kuwait is one among them which still has its laws valid for such act. The above-stated “had” denotes that many nations started to amend such laws which collapsed the society. it collapses the society through creating an intention of committing rape to attain any girl the men wish. But Kuwait different from others holds such a law till now along with certain restrictions and controls. Article 182 of Kuwait’s law No. 16 of 1960 allows the person who either rape, kidnaps to marry the victim. The discussion upcoming deals with the laws present in controlling the action.
Article 178 to 185 deals with kidnap and its related punishments, article 182 specifically emphasizes and states that “If the kidnapper marries the person who kidnapped her legally with the permission of her guardian, he is not sentenced to any punishment” which means the person who kidnaped may exempt himself from punishments if he agrees to marry. Though when viewed generally kidnap means a mere abduct from a place of residence without any willingness of the victim, the act of rape, seduce, etc is discussed under kidnap in other articles of the nation. Along with these the nation also imposed certain conditions such as the person must be unmarried, presence of consent from both the parties, etc. the important clause that is placed in this rule is that the term “legally with the permission of her guardian” states the presence of consent by the guardians of the victim if the victim is supposed to be a minor, respective punishment are granted but with a choice to opt-out from that stringent punishment. The only loophole that a person can use is that the term “permission of her guardian”.
Somaliland:
Somaliland a self-declared sovereign state present in Africa considered the act of marrying the rapist to be valid has now passed laws to curtail rape, child marriage, trafficking, etc. earlier the nation allowed the practice of marrying the rapist which led to a loss of social morale where the family of the victim gets threatened to accept the marriage. Due to its recent independence, the nation started to enter the phase of development and introduced this bill of criminalizing the act of rape and other related crimes as its first step. This was stepped up by President Abdi’s government after the survey which highlighted the increase in rape cases periodically.
Turkey:
A nation present in the borders of the Asia and Europe “Turkey” is in the stage of introducing the above-said question as a law such that a mere marriage of the victim helps in escaping the criminal punishment. Even after various oppositions and arguments from the people and a suggestion from the United Nations agencies regarding the situation of increase in child marriage, child abuse, rape cases, the Parliament there discusses implementing such task in this present era. Similar to this, a bill that contained a clause of no punishment to a man if he indulges in sex with the women with consent. Though the presence of consent holds a major part in deciding the offense, it was cancelled in the year 2016. The nation as a step to protect the honour of the family brings such laws, such that the honour of the victim or the family does not get down and prevents the victim to enter into a stage of mental stress. The step took by the nation was criticized by all activists who involve in promoting women's rights. A notable point is that other nations which in the past contained such laws are in a step to amend it and remove such provisions from the society.
The situation in India:
Every part of India has witnessed some sort of marrying the rapist either due to family situation or threat, etc. one of the recent facts was that a Priest of Kerala applied for bail for 2 months such that he can marry the girl whom he raped was a minor at that time. The then clergyman offered to marry the victim in considering the welfare of the child. The case in Kerala was not the first time allowing the rapist to marry the victim in India, but as said above such an act has its traces since past in India. Orissa High court also allowed bail to the rapist who was arrested under the Protection of Children from Sexual Offences (POCSO) to marry the victim. When the track of such cases is viewed for any particular year all the cases that are filed don’t reach the court to their full extent rather it gets deviated through such marrying and false promise. A track record which was analysed for the year 2013, it was noted that among 460 under trial cases 109 cases were filed under such false promise among which only 12 cases got judgment as punishment and justice, where else the remaining got settled by itself. But here the question arises of what will happen to that woman, if the person is already married, ill-treats the women, etc. there lies a huge possibility of all danger to occur to any victim. Though considering the welfare of a child stands legal, the skipping up of punishments, or reduction in punishments nowhere holds the justice up. As the rape makes the victim suffer both physically and mentally a mere grant of permission to marry or allowing such marriage even by the parents due to prestige creates instability in the norms of the society. A valid proof for the case of fake promise is the fact that took place in Delhi. Here the woman of age 23 accused a man of rape. The accused promised to marry her by way of obtaining consent from the victim through threat and force. Two months after the marriage the person left the victim stating his intention of escape from punishment. This is not the only case where it took place, there lie many unrecorded cases of rape, marrying the rapist, ill-treatment of victim after the marriage by the rapist, victim left alone after marriage, etc.
Conclusion:
Though there is no law to allow such marriage the nation has no law to prevent such acts. This leads the act of marrying the rapist to be in the hidden phase of the world. This has not only reached its popularity after the statement pronounced by the supreme court but has its existence in the past. Though such acts are allowed to protect the prestige of the family, justice gets un-stabilized nature which as said above collapses the norms of some social institutions. There can be no remedy in terms of money or any other for a criminal act such as rape. Though India doesn’t have any law allowing such an act of marrying the rapist, there lies a fear of its birth in the future.
AKSHAYAN K S
SASTRA DEEMED TO BE UNIVERSITY
References:
1. https://thewire.in/law/supreme-court-rape-accused-marry-pocso-government-employee
2.https://www.ijlmh.com/paper/mohit-subhash-chavan-v-state-of-maharashtra-protection-or-prosecution/
3. https://www.equalitynow.org/kuwait_-_law_no_16_of_1960_promulgating_the_penal_code
4. http://www.gcc-legal.org/LawAsPDF.aspx?opt&country=1&LawID=4204#Section_11248
7. https://www.article-14.com/post/how-india-s-rape-survivors-end-up-marrying-their-rapists