Losing all nuance

The Bombay HC overturned the sessions court order, so, the accused moved the SC for anticipatory bail.

By Sushrut Desai

A few days ago my Twitter feed exploded with news that the SC had asked a rape victim to marry her rapist. Like all reasonable people, I was horrified. I initially thought marriage was peremptorily suggested as a way to ‘settle’ the crime, which would indeed be horrible. But I was wrong.

In a bizarre twist to the sordid patriarchal cliché of elders shaming a victim into marrying her rapist, the victim herself wanted to marry the accused. And it was the accused who refused.

Consider the victim’s FIR: “From my 9th Std for about 10 to 12 times (the Accused) forcefully had sexual intercourse with me. I attempted filing an FIR but the Accused and his mother intervened, confessed their mistake and said that they were ready to accept (me) as their daughter-in-law. Hence, we did not lodge any complaint. The Accused also made (me) and my illiterate mother execute a Notarized Declaration stating: ‘I was in love with (the Accused) and hence with my consent he attempted sexual intercourse with me. He will marry with me as soon as I attain 18 years of age. ‘When I completed 18 years, my mother spoke with (the Accused’s) mother about our marriage. (The Accused’s) mother said: ‘Do what you can do, my son will attempt suicide, but me and my relatives will not accept your daughter.’ Me and my mother time and again requested them, but they refused our marriage. Hence, I have (filed) this complaint.’

Assuming it is true, the victim filed the FIR for rape, because the accused refused to marry her. This is significant. The accused committed rape by forcing himself onto her. It is statutory rape because she was 16 and he was 18 at the time. Importantly, it is also rape because the accused broke his promise in the notarised declaration to marry her. In Anurag Soni vs State of Chhattisgarh, the SC ruled that sexual consent obtained on a false promise-to-marry is rape. It was only when the accused’s promise-to-marry the victim turned out to be false, that the victim filed her FIR.
The Bombay HC overturned the sessions court order, so, the accused moved the SC for anticipatory bail.

The accused’s lawyer cited the the declaration to argue that relation was consensual and they had even agreed to marry. The Court responded: “So, will you marry her?”

Indeed, this is not a great sound-bite. There is a reason courts only ‘speak’ through their judgments, but consider the context. The accused refused to marry the victim after promising her to do so, and was now married to another woman. By this line of questioning, SC was not suggesting that the accused should marry the victim. Rather, it was pointing out that the accused had refused to marry the victim as promised and now could not. It was testing the accused’s arguments, by putting a document he relied on, against him. In the end, anticipatory bail was refused and the accused withdrew his application.

I recognise the language of the court often comes across as cold, unfeeling or clinical to those beyond it. But the questions asked that day arose directly out of the facts; asking them is part of the court’s normal functioning. It is not as if the SC routinely (or ever!) suggests that rape-victims marry their rapists. It did not do so here. When commentary outpaces facts, expunges relevant context and reduces a complex case to misleading sound-bites, all of us are the poorer for it.

The author is Advocate, Bombay HC