“A woman cannot be herself in the society of the present day, which is an exclusively masculine society, with laws framed by men and with a judicial system that judges feminine conduct from a masculine point of view” – Henrik Ibsen.
The Indian society has callously taken up the tradition of tying knots between the offender and the victim to untangle grievous offences such as that of rape. A case, in May 2022, in Tamil Nadu, concerned a man who was convicted under the Protection of Children from Sexual Offences (POCSO) Act for raping his minor niece. The verdict came out to favour the accused when the court set aside his conviction and suggested a ‘compromise marriage’ between the accused and the victim, justifying this through the lens of the popular custom of avunculate marriage practised in Tamil Nadu. The case of V. Mohan vs State dating back to 19 March 2018, had seen a similar outcome when the Madras High Court had suggested the rape victim to solve the matter by mediation.
However, the trajectory of such ‘compromise marriage’ for the victim and ‘opportunist marriage’ for the accused can be traced back to the Khap panchayat system’s technique of enforcing a compromise as a justice delivery mechanism. It can’t be denied how such mechanisms plunge women into abjection of misery and denigration. The amelioration of such hideous crimes by allying them with marriage questions the status quo of ‘justice’ and if it has become weaker in front of the status quo of ‘compromises’ in the legal system. The lost dignity of women, and the egregious state of affairs which would construe her life as sharp vicissitudes is the result of a travesty of justice. The question is ‘Can the damage be un-done by tying a knot?’ Can marriage act as compensation for what is lost? The crux of the argument hovers around the dignity of women, which is destroyed and in the popular social opinion, nothing but a marriage can restore it. Not to mention how women have been treated as a product to flaunt the ‘chastity’ of the family, and who would buy a damaged product? The accused, thus, entering into a compromise marriage, is considered the only viable option to accept the harm.
A Maha Khap Panchayat in progress in Kurukshetra, Haryana. Photo: Akhilesh Kumar
Gender biases found to be ubiquitous in the realm of Indian society have made space in the legal system as well. Rape is termed as a cognizable offence under section 375 of IPC and section 376 of IPC provides for the punishment for the same. Section 320 of CrPC provides provision for the compounding of such cases. Compromise marriage happens to get institutionalised through such enforcement of laws. These problematic decisions by the judiciary alongside judicial pontifications have resulted in the generation of a common notion that the accused can be acquitted or his punishment can be reduced in case of a compromise marriage between the victim and the accused.
To what extent marriage as a consolation, could guarantee a safer life for the victim? Solemnizing rape through marriage can lead to increased cases of domestic violence. Such a marriage compromises women’s honour. A rapist holds an aggressive tendency and suffers from behavioural disorders which are cognitive and intrinsic to his nature. Marriage can do no better in refraining him from committing further violence with his wife. In the case of a compromise marriage, the legal system looks at it in a way as to how the rapist repents his crime and marries the victim as a sign of guilt. The question is, can one escape prosecution simply because he shows remorse for his crime? Compromise marriage is nothing but a loophole present in the legal system which fails to acknowledge the extent of harm caused by the convicted.
The impunity of marital rape further amplifies the repudiation of crimes committed against women. Section 375 of IPC, which deals with rape, also mentions an exception, which says “sexual intercourse or sexual offence by a man with his own wife, the wife not being under 15 years of age, would not constitute rape”. This questions the spirit of articles 14 and 21 of the Indian Constitution securing the right to equality and dignity for every individual. Nonetheless, such a lack of acknowledgement demonstrates how the Indian Legal system extols the crystallisation of the ‘Doctrine of Coverture’ – one of the several remnants of the colonial era which did not consider a married woman as an independent legal entity.
Source: Drishti IAS
In the Sucheta Srivastava v. Chandigarh Administration, the Apex Court had equated the right to make choices related to sexual activity with the right to personal liberty and bodily integrity under Article 21 of the Indian Constitution. In Justice K. Puttuswamy v Union of India case, the Supreme Court recognized the right to privacy as a fundamental right of all the citizens which has a provision to include “the decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or pro-creative nature and decisions in respect of intimate relations”. These judgements have somehow reflected broadly how the Supreme Court has recognized the right to abstain from sexual activity for all women, irrespective of their marital status as a fundamental right under Article 21 of the Indian Constitution. Forced sexual cohabitation in the case of a married woman, thus violates the fundamental right under Article 21. Other than this, women can opt for registering complaints against their husbands on accounts of domestic violence. However, the absence of a proper construct to criminalize marital rape with provisions for punishment under different charges sheds light on the scornful anomaly exhibited by the Indian Legal system.
In the Vijay Sood vs State of Himachal Pradesh case, the victim was coerced to marry the accused by the officers in the investigation, which also led to one of the family members of the victim to commit suicide. Such incidents depict how many times compromise is forced upon the victim. The persistent proddings of various women activists from time to time seem to have failed. The patriarchal and misogynistic approach to adjudicating the cases of rape, culturally or legally, leaves an impression that the society has refused to accept the exacerbation of the status of women. Marital rapes and concepts like compromise marriage are an illustration of women losing agency over their bodies. Societal norms have always depicted women as mere chattels of men and how with an intrinsic sense of authority, men exercise de facto entitlement over women’s bodies.
Women continue to compromise in each of such rape cases. Rapes happening before marriage provide an escape for the accused by marrying the victim, rapes happening after marriage can not be reported explicitly in the legal system. Such compromises obfuscate justice for women. What the authorities clearly lack is a victim-sensitive approach and abstaining from the pronouncement of verdicts that could infringe upon the victim’s rights and relegate them to an inferior position in society. The presence of a judicial system which judges feminine conduct from a masculine point of view can be seen as the root cause of such pronouncements. Not to mention, the Indian legal system is yet to have a female Chief Justice. The apparent dearth of women in such authorities delineates how patriarchy is still deeply rooted and how superseding compromises by justice is still a far cry in such cases.
By Raksha Jha
raksha.ajha@gmail.com
Comments